Costs: On the wrong track?

• The fixed recoverable costs (FRC) regime must offer greater guidance on non-litigated cases.
• Without guidance, we will see costs arguments about which track the claim would have been allocated to and which band is appropriate.
• The issue of costs-only proceedings and assessments in FRC cases is likely to increase. The answer lies in a revised pre-action protocol.

There are unintended consequences of the latest fixed recoverable costs (FRC) that could result in fewer cases being dealt with without court proceedings. Already in non-personal injury cases, some practitioners are being encouraged to issue proceedings before the 1 October 2023 deadline if they—and of course their clients—wish to avoid FRC. The consultation by the Ministry of Justice (21 July 2023) is welcome, but further consultation is needed to deal with the cases where the courts will not be involved, those that settle without proceedings, or prior to defence.

Valuing the claim

The starting point in non-issued cases