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LJ Jackson's Supplemental Report: Fixed Costs & The New Intermediate Track

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Today Lord Justice Jackson has released his Supplementary Report, following the initial review of civil litigation costs back in 2009 that resulted in significant changes to the CPR in 2013. The Supplemental Report proposes further changes that intend to build on the monitoring and controlling of legal costs brought about by, amongst other things, the introduction of costs budgeting and costs management.

Lord Justice Jackson has confirmed his belief in the merits of costs budgeting, whilst also presenting updated proposals for fixed recoverable costs (“FRC”) for fast track claims; a new “intermediate track” for certain claims between £25,000 and £100,000 in value which also attract FRC; and an interesting suggestion in relation to Part 36 Offers.

The report runs to 135 pages and Lord Justice Jackson is currently providing further detail in response to questions at the release of the report. The specifics will be pored over in the days to come; but the following proposals jump out on first reading:

  • Lord Justice Jackson considers that all claims with a value of up to £100,000 could eventually fall within the scope of FRC;
  • For now, a new Intermediate Track should be introduced for most claims with a value between £25,000 and £100,000;
  • A grid of FRC that breaks the litigation down into stages (but not Precedent H phases) is proposed, which also separates out specific FRC for  Counsel (Page 106);
  • Clinical Negligence claims will be exempt from the Intermediate Track unless both breach and causation are admitted, however even then complexity could still justify exemption;
  • A bespoke process for Clinical Negligence claims of up to £25,000 in value should be developed by all parties involved with a view to introducing FRC;
  • Part 8 Claims will be exempt from the Intermediate Track;
  • Fast Track claims should follow a FRC grid provided in the report, and be reviewed every 3 years;
  • Approval Hearing applications for settlement of matters involving children or protected parties should be subject to FRC; and
  • A Defendant failing to beat a Claimant’s Part 36 offer should not face an Indemnity Costs order, but should pay an uplift on the recoverable costs of up to 30% or 40%.

Lord Justice Jackson has already confirmed that any such changes should not impact on existing litigation as and when they are introduced.