APIL drops judicial review of fixed costs extension

Association says government addressed concerns it had with concessions last month

The Association of Personal Injury Lawyers (APIL) has withdrawn judicial review proceedings against the Lord Chancellor over the extension of fixed recoverable costs (FRCs) in personal injury cases following the concessions made last month.

“Issuing proceedings against the government is never something APIL, as a not-for-profit campaigning organisation, undertakes lightly,” said APIL president Jonathan Scarsbrook. “But the rules as originally drafted were potentially so damaging for injured people seeking redress that we had no choice but to take action.

“There was significant concern surrounding a lack of clarity about when FRCs might be applied to clinical negligence cases, for example. There was a real risk a solicitor would have to undertake a great deal of work on a case, only to find at a late stage that fixed costs are applied which would not cover the costs of the work undertaken.

“The outcome of the consultation which followed our judicial review alleviated this situation and most of our other concerns, and the government’s subsequent commitment to consult on the impact of the rules surrounding vulnerable parties is very welcome.”

Amendments to rules due to come into effect next month mean costs will now be available for dealing with inquests and for restoring companies to the Companies Register. The amended rules also make it clear that clinical negligence claims will only be subject to FRCs in the new intermediate track if liability is admitted, in full, in the defendant’s formal response to the letter of claim.

The Ministry of Justice also confirmed that it was not its intention to reverse current case law, which allows parties to contract out of FRCs when there was a dispute in settlement agreements, in favour of agreeing that costs would be subject to detailed assessment.

All these issues formed key parts of APIL’s legal challenge. In response to the final element of the challenge, the government has committed to carry out a formal consultation on the impact of the rules on vulnerable parties by no later than October 2026. 

Mr Scarsbrook said: “The timeframe for that consultation allows for the gathering of evidence, although we will be vigilant about this issue in the meantime, and alert to any need to intervene in an ongoing case if necessary and appropriate.

“We have come a long way and a lot has happened since our letter before action was sent to the government on 7 July last year.”

Last month’s announcement confirmed that the Ministry of Justice was also pressing ahead with FRCs for costs assessments and for part 8 costs-only proceedings, although they will not happen until October to give the Civil Procedure Rule Committee time to draft the rules.

The ACL expressed its disappointment with the decision and it then emerged that the committee itself had rejected the proposals. The ACL urged the Ministry of Justice to “pause” the changes as a result.

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27 Mar 2024

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