Access to Justice: Fixed Recoverable Costs

by Kidd Rapinet on June 16, 2023
Vashti Prescott

If you commence a civil claim in the County Court which has a financial value of more than £10,000 but less than £25,000 it will most likely be allocated to the “Fast Track”.

From the 1st October 2023 Fixed recoverable costs will be extended across the fast track with a new intermediate track for simpler cases valued up to £100,000.

The extension of fixed recoverable costs across the fast track, along with the introduction of an intermediate track for simpler cases valued up to £100,000, can have both positive and negative implications for litigation and access to justice.

One potential benefit of this change is that it provides more predictability and certainty in legal costs for parties involved in litigation. Fixed recoverable costs set predetermined limits on the amount that can be claimed for legal fees, reducing the potential for excessive or disproportionate costs. This can make the litigation process more efficient and affordable, particularly for smaller cases. It also allows parties to assess the potential costs and risks before proceeding with a claim, which may encourage settlement and alternative dispute resolution methods.

Additionally, the introduction of an intermediate track for simpler cases can help expedite the resolution of disputes that fall within this value range. By providing a dedicated track for these cases, it aims to streamline the litigation process, ensuring that they are dealt with more efficiently. This could potentially lead to faster and more accessible justice for individuals and businesses involved in such cases.

The disadvantages are that in some cases the costs incurred to either bring a case or defend a case can be quite significant. If you are not going to be able to recover these costs from your opponent (because your entitlement to costs are going to be “fixed”) this may well deter parties from seeking justice by either defending or bringing a claim, that they otherwise would have.

In particular, the fixed costs regime will extend to housing claims. If vulnerable families facing eviction feel that they are unable to take the necessary legal action to secure their homes (because they are unable to find a lawyer who will take their case on a “fixed fee” basis and they are unable to pay for legal assistance privately) then local authorities will find themselves faced with an avalanche of homelessness applications.

There is also the risk that fixed costs would for the first time apply to clinical negligence claims. Fixed costs have applied to personal injury claims for a number of years now, but never to clinical negligence claims. Personal injury lawyers have had to compensate for the significantly reduced fees that fixed costs offer them by charging a success fee – which is usually 25% of their client’s damages. Clinical negligence claims are complex. The need to establish breach of duty and causation in order to successfully bring a claim can mean that the Claimant has to obtain reports from a number of different medical experts. The costs for even very modest claims can be significant. If fixed costs are now brought in to clinical negligence cases, vulnerable Claimants may find themselves unable to find a clinical negligence lawyer to take their case on – or if they do, may find that a huge percentage of their damages are eaten up in legal costs. This is a huge concern. Fixed costs will not work in clinical negligence cases.

My own opinion is that access to justice will be compromised.

This article has been brought to you by Vashti Prescott, a personal injury lawyer at Kidd Rapinet Solicitors Canary Wharf, who is registered as a Senior Litigator with the Association of Personal Injury Lawyers (APIL), Pan European Organisation for Personal Injury Lawyers (PEOPIL) and an Accredited member of the Law Society Personal Injury Lawyers.  You can reach Vashti using the form provided or call 0207 265 5486.

These materials and content have been prepared for the benefit of their viewers/readers. They are intended for marketing purposes only and are of a general nature and do not constitute legal advice applicable to any particular facts or circumstances. Kidd Rapinet LLP and/or the author(s) accept no duty of care, responsibility or liability for any loss or damage which you or any third party may suffer as a result of any reliance or use by you or them of these marketing materials and content, except to the extent it is not legally possible to exclude such liability. If you require legal advice on your own situation, please contact us so we can discuss how we may assist.

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