Fixed Recoverable Costs (FRC) Interim Implementation Stocktake

Fixed Recoverable Costs (FRC) Interim Implementation Stocktake This is an evidence gathering exercise by the Civil Procedure Rule Committee (CPRC) in conjunction with the Ministry of Justice (MoJ) This exercise begins on 31 October 2025 This exercise closes on 05 January 2026 1

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How to Respond The CPRC invites written responses from users and potential users of the civil justice system in England and Wales. In particular responses from legal professionals, enforcement agents, businesses, individuals, representative organisations, and advice agencies in England and Wales are welcome. Email to: CPRCconsultation@justice.gov.uk. Please note "Fixed Recoverable Costs (FRC) Interim Implementation Stocktake” in the subject line of your email. Post to: Carl Poole, Secretary to the Civil Procedure Rule Committee, Post Point 7.38, Ministry of Justice, 102 Petty France, London SW1H 9AJ Please Note: Submission format:

If you intend sending a PDF document it would be helpful if you could send a word document as well to assist in analysing the responses. Only the PDF document will be retained as the response document. Complaints or comments: If you have any complaints or comments about the consultation process you should contact the secretary to the CPRC at the address given above. Additional copies: Further copies can be obtained from the secretary (details above). Representative groups: Representative groups are asked to give a summary of the people and organisations they represent when they respond. Confidentiality:

Information provided in response to this consultation, including personal information, may be published or disclosed in accordance with the access to information regimes (these are primarily the Freedom of Information Act 2000 (FOIA), the Data Protection Act 1998 (DPA) and the Environmental Information Regulations 2004. If you want the information that you provide to be treated as confidential, please be aware that, under the FOIA, there is a statutory Code of Practice with which public authorities must comply and which deals, amongst other things, with obligations of confidence.

In view of this it would be helpful if you could explain to us why you regard the information you have provided as confidential. If we receive a request for disclosure of the information we will take full account of your explanation, but we cannot give an assurance that confidentiality can be maintained in all circumstances. An automatic confidentiality disclaimer generated by your IT system will not, of itself, be regarded as binding on the CPRC. The CPRC will process your personal data in accordance with the DPA and in the majority of circumstances; this will mean that your personal data will not be disclosed to third parties.

The principles that public bodies should adopt for engaging stakeholders when developing policy and legislation are set out in the consultation principles https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/49213 2/201 60111_Consultation_principles_final.pdf 2

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Preface Fixed Recoverable Costs (FRC) are a crucial mechanism in ensuring that the costs of civil litigation are proportionate and predictable. First introduced for low-value personal injury claims in 2010, FRC were extended to apply to most civil cases in the fast and intermediate tracks in 2023. This was also the year that the intermediate track was introduced. The Civil Procedure Rule Committee is undertaking this evidence gathering exercise with the Ministry of Justice (MoJ) to take stock of how the extension of FRC is working. We hope that this will help uncover any emerging issues with FRC or the intermediate track.

We will use this exercise to consider whether we need to make any changes to the Civil Procedure Rules (CPR) in the short to medium term. This exercise will be followed by the MoJ's full Post Implementation Review into the FRC regime as a whole, which is due to commence in 2026. We welcome views from anyone who has been involved in affected claims, whether they be court users, solicitors, barristers, judges, administrative staff or members of the public generally. I would like to thank you for taking the time to participate in this exercise. Yours sincerely, Lord Justice Birss, Deputy Head of Civil Justice 3

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Introduction Background One of the core principles in civil litigation in England and Wales is that costs follow the event – meaning that the losing party is generally required to pay the winning party’s legal costs. While this is a critical component of our civil justice system and serves to incentivise early settlement whilst ensuring only meritorious cases come to court, the risk of adverse costs can be a cause of concern for parties before they embark on civil litigation. It is important that the costs payable are proportionate to the value of the claim, and that the costs regime does not in itself undermine access to justice.

Ordinary individuals should be able to engage in civil litigation with certainty and without fear of incurring ruinous costs. Fixed recoverable costs (FRC) prescribe the amount of costs that may be recovered from a losing party in civil litigation. They help to ensure that legal costs remain proportionate and thereby promote access to justice. FRC give both parties certainty as to the maximum amount they may have to pay if unsuccessful. They have been a part of our civil justice system in most low-value personal injury claims since 2010.

It is sometimes suggested that FRC favour defendants at the expense of claimants, but it is generally just as much in claimants’ interests to control the costs that they might have to pay. Access to justice is enhanced if claimants can contemplate legal proceedings with an informed assessment of the likely costs, rather than to avoid them altogether due to a fear of a high but uncertain liability. FRC prescribe the amount that can be recovered by the winning party at set stages of litigation, from pre-issue to the trial itself, with reference to a particular case type and track. Sir Rupert Jackson conducted a major Review of Civil Litigation costs, published in 2009.

He noted in his 2017 Supplemental Report on Fixed Recoverable Costs that: “… [a]t the heart of both reviews has been the same objective of promoting access to justice. Controlling litigation costs (while ensuring proper remuneration for lawyers) is a vital part of promoting access to justice. If the costs are too high, people cannot afford lawyers. If the costs are too low, there will not be any lawyers doing the work.” 1 Extension of Fixed Recoverable Costs In his 2017 review, Lord Justice Jackson recommended extending the FRC regime to the vast majority of County Court cases, to ensure that costs are controlled and proportionate to the value of the case.

Broadly in line with Jackson’s recommendations, the Government – in conjunction with the Civil Procedure Rule Committee - implemented the extension of the FRC regime in 2023 to most civil cases in the fast and intermediate track, the latter of which was introduced at the 1 fixed-recoverable-costs-supplemental-report-online-2-1.pdf 4

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