Earlier articles summarised the extension of FRC regimes which takes effect on 1 October 2023 and noted the distinct transitional arrangements for general claims, injury claims and for disease claims.

With just 10 weeks before the implementation date, the Ministry of Justice (MoJ) has begun a further consultation on six topics which is likely to lead to further changes to the Procedure Rules which govern the FRC scheme. The MoJ proposes to make the necessary changes in April 2024 and, for the time being at least, it does not appear that the need to address these discrete topics puts the October date at risk.

The Rule Committee signed off the drafts of the FRC Rules and Practice Direction in March, with a note in the minutes of the meeting recording that there were “necessary compromises required as part of the drafting process in order to achieve workable solutions to what are complex issues” and that “it was not possible to cover all eventualities”. The latter remark has now proved to be prescient, with some six topics that were not previously addressed being taken forward in a fresh consultation by the Ministry which will run until 8 September. In addition to this, the MoJ has indicated that all the figures in the FRC matrices - which were prepared in January 2023 - will be adjusted further to allow for the effect of inflation up to October 2023.

The issues for consultation and the MoJ’s proposed ways forward are set out below. For the most part, the MoJ’s solutions appear to offer realistic and reasonable approaches, even if one might have anticipated that these issues really ought to have emerged long before now given that it’s now more than four years since MoJ first consulted with a very clear view to extending FRC.

The MoJ’s intention following the current consultation is to make the necessary amendments to the Rules in April 2024. As in the past, we will be responding to the consultation and would be happy to discuss our views and/or assist clients with making their own representations.

Further consultation on FRC, July-September 2023

TopicProposal for consultation
Fixing the costs of costs assessments
  • To plug what would otherwise be a gap in the FRC regime
  • To allow a fixed sum of £500 where there is a shortened form of assessment in FRC cases - the figure being that proposed by Sir Rupert Jackson in 2017 
Fixing costs for Part 8 ‘costs only’ proceedings
  • To plug what would otherwise be a gap in the FRC regime
  • To allow either
    • sums of £300 (claimant) or £150 (defendant) as proposed by Jackson, or
    • the amounts for interim applications set out at Rule 46.14 
Costs in inquests and costs of restoring companies to the register
  • To plug what would otherwise be gaps in the FRC regime
  • To clarify that costs of representation at inquests are recoverable separately to any FRC in a civil claim arising from the death
  • To allow for the recovery of the costs of restoring a company to the register separately to any FRC associated with a civil claim against the company 
Advocacy fees in cases settled late
  • MoJ seeks views on a proposal from Bar groups that would
    • provide that 100% of the trail advocacy fee (which is already ring fenced from general FRC) would be recoverable if the case is removed from the list on the day of trial, and
    • provide that 75% would be recoverable it is removed within two working days of the date fixed for trial
  • It is also seeking evidence for such a change and views on possible behavioural impacts
Inflation of the advocacy fee
  • To update these fees
  • Bar groups had proposed
    • an inflation-driven increase of 4% for advocacy fees in complexity bands 1-3, and
    • a 20% increase in fees at band 4
  • MoJ accepts the former but on the latter it “is not persuaded that there is a case for this, as these figures were set separately by Jackson”
Clinical negligence claims
  • To clarify the approach in the intermediate track
  • The Rule provides that these claims may be allocated to the intermediate track only if both breach of duty and causation have been admitted
  • MoJ proposes to refine the Rule so that it is clear that the admission must be made in the Pre-Action Protocol Letter of Response