Kerry Underwood


with 10 comments

The Civil Procedure (Amendment) Rules 2017 were laid before Parliament on 3 February 2017 and will come into force at various times over the next three months.


Multi-track cases not subject to fixed costs – effective 6 April 2017.  


The new rules give statutory force to the Court of Appeal’s decision in Qader & Others v Esure Ltd & Khan v McGee [2016] EWCA Civ 1109, 16 November 2016 by specifically providing that Fixed Recoverable Costs apply only “for as long as the case is not allocated to the multi-track.”


£25,000.00 upper fixed costs limit scrapped – effective 6 April 2017


The words “but not more than £25,000.00” are removed throughout the CPR 45.29 fixed costs tables.


Thus an ex-portal claim remains subject to Fixed Recoverable Costs whatever its value. It is only allocation to the multi-track that takes it out of fixed costs.


Non-payment of trial fees – effective 6 March 2017


There is a new provision which has been described as the re-introduction of Automatic Strike Out, which, up to a point, it is.


However this will only occur after a notice has been sent out giving details of the fee to be paid, when it is to be paid, and the consequences of not paying the fee.


The new procedure


The court sends out a notice to the claimant when the trial date is set, and that notice states:


  • the amount of the trial fee;


  • the date by which it is to be paid;


  • the consequences of non-payment.


If the fee is not paid on time then the claimant’s action is automatically struck out with the claimant paying the defendant’s costs.


Any counterclaim continues and if the action is continuing on the counterclaim only, then identical provisions apply to that counterclaim.




There is power to reinstate an automatically struck out claim provided that the court fees have been paid in full.


There is no guidance as to the basis on which that discretionary power should be exercised.


Fee remission (Help with Fees)


There are detailed provisions in relation to those entitled to help with fees.


Costs Budgeting – effective 6 April 2017


The new rules make specific provision for the court to record comments about costs already incurred before the budget.


The court now records any agreement about “budgeted costs”, that is costs not yet incurred, as well as any agreement in relation to costs already incurred.


The effect is to overturn the decision of the Court of Appeal in


SARPD Oil International Limited v. Addax Energy SA and another [2016] EWCA Civ 120


In that case the Court of Appeal held that at a cost budgeting hearing there could be full argument about costs already incurred.


Now the position reverts to the pre SARPD regime, where the judge simply records her or his views on the costs incurred to date, and whether they appear proportionate, without any form of assessment.


Aarhus Convention claims – effective 28 February 2017


Aarhus Convention claims essentially deal with judicial review of decisions relating to the environment.


Such claims are subject to capped liabilities for costs as follows:-


  • for an individual claimant: £  5,000.00


  • for any other claimant: £10,000.00


  • for any defendant: £35,000.00


The new rules insert new CPR 45.41 to 45.45 dealing with its procedure in such claims.


Written by kerryunderwood

February 16, 2017 at 8:08 am

Posted in Uncategorized

10 Responses

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  1. This is extremely useful Kerry thank you .
    Will you be continuing to do this going forward on all CPR changes ?

    Sarah Lapsley

    February 16, 2017 at 10:06 am

  2. Yes 😄


    February 16, 2017 at 11:45 am

  3. Invaluable and clear.
    Thank you.

    Sue King

    February 20, 2017 at 1:07 pm

  4. Hi Kerry

    Do the new rules apply to NIHL cases? i.e. if an NIHL claim exits the Portal and is not allocated to the MT, would FRC now apply?


    April 7, 2017 at 9:24 am

  5. Paul

    Industrial disease cases are not covered by Fixed Recoverable Costs – see CPR 45.29A(2) which states:

    “This section does not apply to a disease claim which is started under the EL/PL Protocol”.

    All dealt with at page 868 of my new book Personal Injury Small Claims, Portals and Fixed Costs.



    April 7, 2017 at 10:19 am

  6. Hi Kerry,

    Your blog is always a mine of information! Thank you. Can I ask you for your thoughts on a matter? If a case commenced within the Portal but exited (eg. due to value) and which subsequently settled pre 6/4/2017, for example for £30k but where the costs have not yet been agreed or paid – is the Claimant entitled to standard basis costs or is he restricted to FRC? There appear to be no transitional provisions for such matters.

    Sue Metcalfe

    April 25, 2017 at 12:17 pm

    • Sue

      Many thanks. Fixed costs in my view following Court of Appeal decision in Qader. Any ex-portal matter -apart from an industrial disease case – is subject to fixed costs unless and until allocated to the multi-track. New rule clarifies, rather than changes, law in my opinion, but others may disagree!



      April 25, 2017 at 12:22 pm

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