Following the last few years of speculation and uncertainty on the subject of fixed costs, Lord Justice Jackson finalised his report on the issue this week and provided some much needed clarity on the subject.
As has been widely reported in recent times, the recommendations made included the addition of a new track (the intermediate track) for cases between £25,000 and £100,000. This will not, however, apply to clinical negligence cases where fixed costs will only apply to claims for damages under £25,000 and even then only where both breach of duty and causation have been admitted in the letter of response.
The proposals also suggest that there be no provision for indemnity costs. In its place would be an enhancement of the appropriate fixed costs figure of 30% or 40%.
The parties will be expected to agree a band of complexity and the appropriate figures will be calculated on the basis of that band with a fixed amount plus a percentage of the damages being awarded. If the parties are unable to agree the appropriate band, then the judge will deal with that on allocation. Either party may challenge the band but will be ordered to pay fixed costs of £150 if unsuccessful.
Where the Claimant is successful, the damages for the purpose of the calculations are the damages recovered. Where the Defendant is successful, reference to damages means the claim defeated, so the amount as valued in the particulars of claim.
There is also a matrix of fixed trial costs. Provision is made within both fixed fee matrix for instructions to Counsel or a specialist lawyer to draft statements of case and advise at that stage, to advise in conference prior to trial and to attend the trial. There is also provision for fixed fees to be recovered for the attendance of both Solicitor and Counsel at any JSM.
These proposals are now to be the subject of a government consultation with further review as to their implementation by the Civil Procedure Rules committee sometime next year. The earliest we are likely to see any implementation is around October 2018.