Reforming the Reforms with Professor Dominic Regan
It was remarkable that a consultation was launched in July to consider amendments to rules which would not come into force until October of this year! Well that was what happened in respect of the new Fixed Recoverable Costs measures. Some cynics will describe this as a defensive measure, launched to head off Judicial Review proceedings instigated by APIL.
One can confidently predict that in April 2024 there will indeed be changes made. The Ministry of Justice has indicated that “It is minded” to address the primary concern of clinical negligence practitioners. In the new Intermediate Track, it is plainly declared that clinical claims must be allocated to the multi-track. However, that is diluted by a proviso that where breach of duty and causation are admitted such a case could be allocated to the Fixed Costs regime which is at the core of the Intermediate Track. Nightmare upon nightmare, could such a quantum only case be allocated to Band 1, rubbing shoulders with credit hire, where costs are at the lowest level recoverable?
When I had the privilege of discussing reform with Sir Rupert Jackson as long ago as January 2017 he was adamant that only cases where the defendant capitulated at the outset would make it into the new Track.
My expectation is that the Rule change coming will state that the admission must be made by the defendant in their formal response to the letter of claim. Any later than that and the ship will have sailed taking the action into the multi-track. Consequently, I doubt that very few claims will be subject to fixed costs. Again, it is not inevitable that a clinical negligence action would be assigned to the low Band 1. Heavy issues solely related to quantum should justify a higher banding.
Since the reforms only apply where the cause of action accrued since 1st October 2023 there is no need to panic.