Fixed Recoverable Costs
Also with broad potential ramifications is the proposed extension to Fixed Recoverable Costs, which does appear to be back on the MOJ's agenda. We anticipate more details will be released in the coming months. As the result of another review, which ended in June 2019, it seems likely that in the foreseeable future, most civil claims valued at up to £100,000 will become subject to FRC. Only clinical negligence claims and claims considered to be too complex will be excluded.
High Value Litigation
Turning to extremely high value litigation, the approach adopted in Vattenfall AB & Ors v Prysmian SPA & Ors [2021] CAT 3 could signal a future where there is greater willingness to use costs management, even in matters which fall outside the mandatory regime as a result of their high value. Certainly, with this Jacksonian initiative having now been in place for approaching a decade, the judiciary is generally adept at using the process to provide greater certainty for parties to litigation insofar as the potential costs are concerned, and one can see the argument that this certainty should be a reasonable expectation for as great a number of litigants as is possible.
This certainty and transparency would appear to be a key motivating factor in Trower J's judgment: “I agree with the submission made on behalf of the Prysmian defendants that the preparation of detailed cost budgets in the form of precedent H is more likely to facilitate the desirable objective of transparency as to the parties’ likely costs of the proceedings than is the simpler exercise of updating the existing summary estimates.
“I think that these should in any event be followed by budget discussion reports. Once costs budgets and budget discussion reports have been filed, it will then be possible for the tribunal to consider the terms of any costs management order to be made in the form contemplated by CPR 3.15.”
Vulnerable Parties
All costs matters, including these actual and proposed regimes outlined above, are impacted by the formal recognition of ‘vulnerable parties and witnesses.’ The OIC system has its own definition of ‘vulnerable’ in relation to claimants who should not use the process, but in all other situations, the Civil Procedure Rules were amended with effect from 6 April 2021, to require the courts to take into account vulnerability. In the context of this article, the most important change is that from 6 April 2021, when a court considers costs and their proportionality under CPR 44.3(5), it will have to take into account “any additional work undertaken or expense incurred due to the vulnerability of a party or any witness”.
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