CPRC Annual Open Meeting: Key highlights

I had the privilege of attending the CPRC Annual Open Meeting earlier this month, where the Committee shared crucial updates related to Fixed Recoverable Costs (FRC), Clinical Negligence Fixed Recoverable Costs, and Costs Budgeting Light.

Key Highlights:

Clinical Negligence FRC

Senior Master Cook from Laurent Viac (Department of Health and Social Care) provided an update. While the rules are still very much in development, it’s evident that Clinical Negligence claims will be handled differently from other FRC matters. The Committee made it clear that any deviation will require justification.

Draft rules are expected to be finalised in the next CPRC meeting (June) and become effective in October (though this timeline may shift to July due to the amount of work required).

The intention is to finalise the draft rules in the next CPRC meeting in June, to be effective from October, although it was acknowledged that there is a lot of work still to do and this may have to be pushed back to July.

Discussions centred around penalties for late document service and unreasonable behaviour. Proposed penalties for late service include a 5% uplift on damages for Claimants if Defendants breach deadlines and a 5% decrease on FRC if Claimants breach. The CPRC expressed concerns about the conflict between the 15% vs. 50% unreasonable behaviour costs sanction discrepancy and expressed that justification would be required for a different sanction to apply to Clinical Negligence claims.

The DoH stated that there was an intention to apply the FRC scheme to Protected Parties in Clinical Negligence claims and the CPRC again expressed that justification of this would be required.

The CPRC also advised that justification would be necessary for the requirement for parties to set out why a claim is not brought within the Lower Value Clinical Negligence Damages Protocol in the Claim Form, if not used, given that there is no other protocol requiring the same.

London weighting aligns with the wider FRC regime.

Clarity is required around the bolt on for children and protected parties for the approval process and how that will work.

Litigants in Person will be excluded from the LVCND regime.

Determination of FRC

Mr. Justice Trower confirmed that Fixed Costs Determination rules are nearly final. The Courts’ wide powers under determination and assessment will be clarified.

Assessment under Part 45 includes Exceptional Circumstances, Vulnerability, and Stage 1 Non-PI Intermediate Track fixed costs.

Costs Budgeting Light

I raised the question as to when Costs Budgeting Light is likely to come into force and whether there were any early indications of the features of the pilot. 

The CPRC advised that the first draft of the pilot is to be put forward at the June meeting. Timescale for implementation depends on when the rules are approved but it is anticipated that the pilot will run for two years. The CPRC were reluctant to share details of the draft at this stage given that they could be subject to significant change when reviewed next month.

Inflation

Further uprating for FRC (e.g., portal costs) is under review but not imminent.

Agency Fees

A question was raised around whether there was any intention to consider whether the rules ought to clarify if parties should be required to provide breakdowns of medical expert and agency fees and whether agency fees were in principle, recoverable in FRC cases.

The CPRC stated that recoverability of agency fees will be considered during next year’s FRC stocktake, though specifics on breakdowns were not addressed.

Provisional Assessment Cap

Sir Geoffrey Vos responded to a question regarding the £1500 plus VAT cap on Provisional Assessment (PA) costs and whether there are plans to increase it. Notably, this cap has remained unchanged since its inception in 2012. Sir Geoffrey acknowledged that this issue has been raised multiple times and requested LJ Birss (head of the Costs Sub-Committee) to review it.

What’s Next?

Amidst ongoing changes, uncertainty prevails. The CPRC is diligently addressing these developments, and we eagerly await further updates!