Peering into the past and gazing into the future - a costs review (Part 2)
And the year ahead in 2023
The biggest event by far will be the extension of Fixed Costs in October, covering many matters valued between £25,000 - 100,000. This has been on the horizon since LJ Jackson’s original proposals, and the content should not therefore be any surprise. There will be 4 bands of work, with the most complex being in band 4.
As LJ Jackson recommended, actions involving mesothelioma/asbestos, complex personal injury, professional negligence, actions against the police, child sexual abuse, and intellectual property, will be excluded from the so called intermediate cases.
The changes will only apply to cases where the cause of action accrued on or after the implementation date and therefore are not retrospective. Other than the obvious limitation of costs, the biggest changes will be that the indemnity principle, costs budgeting and detailed assessment will no longer feature.
A good Part 36 offer will generate a 35% uplift in the scale costs.
And what about fixed costs in clinical negligence matters up to £25,000? This is still firmly on the agenda and is likely to apply where the claim is notified on or after implementation day and not when the cause of action accrued.
I suspect that the new extended Fixed Costs regime will, as with the earlier introduction of Fixed Costs, produce plenty of satellite litigation and “game playing”.
I have seen an increasing demand over the last year from clients, new and old, to get back to grass roots and ensure they are getting the basics right, namely time recording and capture, case management, management information and especially pricing. Taking time to get your retainer, funding and price right from the start will avoid many awkwards client conversations, between the parties' recovery issues and consequent write-offs. Indeed the research is clear, that investing time at the start, will mean you will recover at least ten-percent more at the end.