Hot on the heels of the whiplash review published on 30 October, today the Ministry of Justice (MoJ) and Civil Procedure Rule Committee (CPRC) released a further costs-related consultation of interest to compensators, insurers and their legal panels.

This second consultation will seek evidence on the operation and effectiveness of the extended fixed recoverable costs (FRC) regime introduced in October 2023 and is described as an “Interim Implementation Stocktake”. All materials published as part of the stocktake are available on the CPRC website. 

The whiplash review addresses small track (<£5,000) road traffic accident injury claims whereas this new stocktake consultation will consider the extended FRC for all civil claims in the relatively new intermediate track (<£100,000). Its aim is “to identify any emerging issues with the new FRC regime”, i.e. in the intermediate track only. 

Despite the intermediate track being fairly well defined, the scope of the stocktake is broad and takes in matters such as: the four case complexity bands, the use and effect of Part 36 offers, excepted claims (such as in housing and in clinical negligence), the level and incidence of disbursements, as well as the impact of unreasonable behaviour on costs.

With two concurrent costs-related consultations having begun, it seems that what is missing at present is the opportunity to provide views and proposals for reform of the separate FRC scheme applying to road traffic and EL & PL injury claims in the fast track (£25,000). That was introduced in 2010, with refinements made in 2013 in line with recommendations made in Lord Justice Jackson’s review.

That said, the introduction to this extended FRC ‘stocktake’ notes that it “will precede the full post-implementation review in late 2026”, which seems to suggest that fast track FRC will be scrutinised at that stage. Even so, that full review is still around a year away and any reforms that result from it would seem very unlikely to come forward before mid-2027 at the earliest – more than a decade and a half after the introduction of fast track FRCs.

As with the whiplash review, views and analysis drawn from accurate and comprehensive claims data will be a critical part of responses from stakeholders, intermediate track claims data in this instance. Any data from claims concluding before proceedings are issued or before allocation will be particularly relevant because very few issued claims - less than one in fifty - are currently allocated to the intermediate track. The MoJ’s Civil Justice Statistics for April to June 2025 (the latest release) breaks down allocated cases as follows.

The MoJ statistics release adds that allocations to the intermediate track “are expected to increase as the new track is embedded”. Although that may turn out to be so, the small numbers of cases currently allocated to this track two years after its introduction stands out - one explanation could be that parties may prefer to argue for the multitrack given that it allows for costs recovery on an hourly rate basis.

As with the whiplash exercise, we will be drawing from our claims data and experience of case handling behaviours in the intermediate track to inform our response. We anticipate organising online and/or in-person engagement during these consultations with clients and our lawyers and costs teams. Further details of these initiatives will follow later in November.