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What then does 2024 have in store? FRC were of course part of a package, changes made not just to costs but also to case management procedures, notably introduction of the new intermediate track and the creation of complexity bands.
from scope on grounds of complexity and sensitivity, the intention would otherwise appear to be to include fatal claims generally, something which
the Association of Personal Injury Lawyers is seeking for the government to reconsider. Whether that leads anywhere, we shall see.
There is expected to be welcome refinement to budgeting rules following, in December 2023, the Master of the Rolls’ acceptance of the recommendations of the Civil Justice Council’s Costs Review Final Report published in May 2023, which will likely see piloted more bespoke forms of costs management in personal injury and clinical negligence claims. That will likely include a staged approach
to budgeting where appropriate, where directions are set first with a subsequent hearing fixed to deal with costs. In
the author’s view the latter would be likely to lead to far greater agreement on budgets without the need for that second hearing, particularly if coupled with directions as to ADR in the manner indicated in Hadley.
What other issues would practitioners be wise to be alert to over the coming year? One case from last year will likely continue to resonate: Northampton General Hospital NHS Trust v Hoskin [2023] 5 WLUK 390, a matter in which the Claimant had used a medical agency to obtain expert reports. Through the application of CPR 47
as to the requirements for the content of bills of costs and the documents
to accompany them, the Claimant became subject to an unless order
to provide a breakdown of the fees charged by the agency and the expert, together with the expert’s fee note,
or have the associated fees disallowed. Whilst the Claimant has discontinued their proposed appeal, it can be expected that the existing decision will be relied on widely by paying parties
in personal injury claims to support requests for breakdowns of expert and agency fees where there has been an agency involved in acquisition of the expert evidence. With the potential
for applications compelling provision of that information, else the fees be disallowed, it is a headache of some reasonable severity the profession could do without at the moment.
Whilst the decision involved one well known medical reporting organisation,
the net will likely be cast wider, potentially catching any situation where the expert’s instruction is mediated in some way by a third party and the entirety of the fee is not payable solely to the expert engaged. Where practitioners are not instructing experts direct, they would be well advised to have conversations with agencies sooner rather than later to ensure that they will provide the relevant information and documentation if called upon to do so.
Another point on which certainty would be welcomed is in relation to the recoverability of time specifically spent by fee earners in attending case management meetings of medical and other professionals, and meetings with
or attendance on Court of Protection deputies on a regular basis. In Hadley v Przybylo [2023] EWHC 1392 (KB), the Claimant argued for the inclusion of such costs in its costs budget, within the Issue/Statements of Case phase on the basis that they were reasonably necessary in the litigation and would assist in maintaining the schedule of loss. The Defendant took the contrary approach, arguing such costs were not progressive of the litigation, and were not a category of cost that would fall to be considered under the Issue/Statements of Case phase of a budget in any event.
Master McCloud took the view that for costs to be recoverable in litigation, they had to be progressive of the litigation, and that costs of the type sought did not fall within that category; information about case management could be obtained via the occasional letter and would fall to be considered in the disclosure phase, witness statements from Deputies or case managers could be taken where required for evidence, but were qualitatively different from the type of expense contemplated here in regular and extensive contact including long meetings. The case (the Claimant having been granted a leapfrog permission) is bound
for the Court of Appeal, and it is hoped that a decision may be given this year. Anecdotally, similar costs are currently being disallowed by other Masters in the context of budgeting, and the decision will likely be relied upon when contesting inclusion of related costs in bills subject to detailed assessment.
Amongst these lingers the spectre of court fee remission; should a litigant be
able to recover from the opposing party court fees paid in circumstances where they would have been entitled to remission but did not seek it? With increase of the capital and income limits on remission from the 27th November 2023, and apparent plans by the Ministry of Justice to increase some fees in March 2024
and begin to apply inflation-based increases to court fees every two years, interest in the topic and a willingness to take the issue to a higher court
will only strengthen (there are non-binding decisions each
way at present, see for instance Gibbs v King’s College NHS
Foundation Trust [2021] EWHC B24 (Costs) and Ivanov v
Lubbe (Central London County Court 17th January 2020)).
So, there are various issues we can see bubbling away for the coming year, each with the potential to restrict future costs recovery or in some instances impact the profitability of work already done. It may feel like a hostile place, this changing and challenging legal environment, but remember: they put the guideline rates up in January.
Dominic Woodhouse
is the National Training Manager – Advocate at PIC.
www.pic.legal Spring & Summer 2024
PARTNERS IN COSTS
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