Kerry Underwood


with 17 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

17 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

  7. Hi Kerry

    I have a situation where a claim was allocated to the MT then Re-allocated to the FT and the Defendant offering Fixed Costs. I think we are stuck, but this doesn’t seem right. Is there anything I can do? 😦

    Emma Turner

    May 16, 2017 at 10:33 am

    • Emma

      My apologies for the delay in replying, but I have been thinking about this and I cannot come up with any definite answer.

      The starting point on allocation and reallocation is that you get the costs relevant to the track that the claim was in at any given time.

      CPR 46.13 reads
      (1) Any costs orders made before a claim is allocated will not be affected by allocation.
      (2) Where –
      (a) claim is allocated to a track; and
      (b) the court subsequently re-allocates that claim to a different track,
      then unless the court orders otherwise, any special rules about costs applying –
      (i) to the first track, will apply to the claim up to the date of re-allocation; and
      (ii) to the second track, will apply from the date of re-allocation.
      (3) Where the court is assessing costs on the standard basis of a claim which concluded without being allocated to a track, it may restrict those costs to costs that would have been allowed on the track to which the claim would have been allocated if allocation had taken place.

      Outside the fixed costs scheme this would make little difference as between the fast-track and the multi-track as the costs recoverable will be based on hours worked and the relevant level of fee earner etc.

      Of course if a claim spends some time in the small claims track, then generally no costs, or rather very limited costs, are recoverable for that period.

      My instinct is that if a matter is allocated to the multi-track and then reallocated to the fast track and is resolved in the fast track under the fixed costs scheme, then you do indeed only get fixed costs.

      CPR 45.29 and the accompanying tables do prescribe a fixed figure for matters settling at any given stage and that is cumulative, that is it takes into account all work done up to that point, with including portal costs which have to be set off against that final fixed costs figure.

      Having said that, there is no authority on the point that as far as I am aware and it could lead to difficulties, especially if fixed costs are extended upwards to cover, say, claims of up to £100,000.00.

      Thus a claim is allocated to the multi-track where it is fought on everything, but eventually say liability etc. are admitted and it is transferred back to the intermediate track simply to deal with quantum.

      It seems unfair in those circumstances that the claimant would only get fixed costs, even though they have had to carry out the extra work required by the multi-track procedure.

      Also under CPR 46.13(1) any costs orders made during the time that the case was in the multi-track survive re-allocation, so, for example, an order in the multi-track in relation to the costs of an interim hearing would be payable at the rate ordered, not at the fixed cost rate for interim hearings.

      Of course you escape fixed costs if you match or beat your own Part 36 offer.

      Did you make a Part 36 offer on liability in this case? Did you make a Part 36 offer on quantum?

      Anyone else out there have any views on this?



      May 26, 2017 at 4:16 pm

  8. does anyone know if there is a time limit to reinstate a struck out case.

    joe schooler

    May 25, 2017 at 8:16 am

    • No


      May 29, 2017 at 6:57 pm

      • Hi Kerry,

        For what it’s worth I think that your initial thoughts are correct – given that FRC are calculated by reference to the stage at which the matter settled, I’m not sure how you could conduct a calculation which was effectively a Broadhurst v Tan in reverse. It would not just be a generous outcome – but double recovery.

        Interestingly, my question concerns the opposite FRC scenario, i.e. what happens when there is allocation from the FT to the MT but no order that MT rules apply from day one, as it were.

        My gut reaction is that FRC apply to the date of allocation to the MT.

        In addition to CPR 44.13, I think the answer is to be found in LJ Briggs’ comments (as mirrored in the rules) that “for so long as … “. In other words, MT rules apply only for the duration of allocation to the MT.

        One would usually expect to find symmetry in the rules when considering polar-opposite scenarios. But in these examples I can’t find that – despite the unattractive lack of reciprocity!

        Any thoughts on my scenario?

        All the best,



        January 29, 2019 at 12:44 pm

  9. PS – that should read 46.13!


    January 29, 2019 at 12:48 pm

    • Arran

      Difficult one- the relevant wording is , as you say, ” and for as long as the case is not allocated to the multi-track” , but does that simply define an event that removes the concept of fixed costs altogether and thus is retrospective- as CPR 45.29J envisages where there are exceptional circumstances, or does it mean that a claimant gets fixed costs up to allocation and standard costs thereafter?

      Obviously wording making that clear would have been desirable :

      ” For the avoidance of doubt, where an ex portal claim is allocated to the multi track, then fixed costs shall apply until allocation but not after.”


      ” For the avoidance of doubt, where an ex portal claim is allocated to the multi- track, then fixed costs shall have no application and for costs purposes the matter shall be treated as though it had always been in the multi-track.””

      But we are talking about the Civil Procedure Rules Committee here; apparently they are progressing to Janet and John 2 this year.

      On balance my view is Fixed Costs to allocation and open costs thereafter, but with CPR 45.29J still open at the end of the case in relation to pre-allocation costs.



      February 2, 2019 at 1:26 pm

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