Kerry Underwood

FIXED COSTS: THE FAST TRACK FIGURES: POST 4

with 6 comments


You can now book onto my Fixed Costs Autumn Tour – here

Lord Justice Jackson’s Fixed Recoverable Costs Report was published on 31 July 2017 and is available here.

In other posts I look in detail at various aspects of the proposed changes.

Here I set out the figures for the Fast Track as proposed in the report.

Fast Track

In the Fast Track there is a new single fixed costs grid covering all Fast Track claims of all kinds, except Noise Induced Hearing Loss Claims and clinical negligence claims.

In relation to Noise Induced Hearing Loss Claims there is a separate grid, which I set out below, and no figures have yet been provided for clinical negligence claims.

In relation to such claims Lord Justice Jackson proposes that the Civil Justice Council and the Department of Health should set up a working party to develop a process for clinical negligence claims initially up to £25,000.00, together with a grid of Fixed Recoverable Costs for such cases (Page 118).

Thus the grid set out below covers both personal injury claims and non-personal injury civil claims and is very much based on the existing fixed costs table set out in CPR 45.29.

The figures are cumulative, that is you get the figure in the relevant box, and only that figure, that is you do not add up the totals in the various boxes.

The exception is the trial advocacy which is a free standing add-on fee.

Thus a Band 1 case reaches trial and is worth between £3,001.00 and £10,000.00.

You get a preparation fee of £3,250.00, up to and including all pre-trial matters and then a free standing advocacy fee of £710.00.

VAT is added to all figures.

As before the fee is, in most cases, a combination of a core fee and a percentage of damages.

A new concept is complexity and I will deal with that in more detail in another post.

However, here is a simple list of the matters that Lord Justice Jackson proposes go into each band and these are set out on page 84 as follows:

 

“5           The remainder of the fast track

5.1          Proposed matrix of FRC and paradigm cases.  Drawing on the work of the FTWG, I propose that all fast track cases be placed into four bands of complexity, Band 1 being the least complex and Band 4 being the most complex.  The following are paradigm cases for each band:

Band 1: RTA non-personal injury claims (popularly known as ‘bent metal’ claims).

Band 2: RTA personal injury claims.

Band 3: ELA and PL accident claims.Band 4: ELD claims (

Band 4: ELD claims (non-NIHL) and the most complex fast track claims.

 

5.2         A fuller list of cases suitable for each band. I propose the following:

Band 1:  RTA non-personal injury, defended debt cases.

Band 2:  RTA personal injury (within Protocol), holiday sickness claims.

Band 3:  RTA personal injury (outside Protocol), ELA, PL, tracked possession claims, housing disrepair, other money claims.

Band 4:  ELD claims (other than NIHL), any particularly complex tracked possession claims or housing disrepair claims, property disputes, professional negligence claims and other claims at the top end of the fast track.

 

5.3          At the allocation stage, the court must have discretion to move individual claims between those bands having regard to the nature of the individual case.  Judges should exercise this discretion sparingly and bearing in mind the proportionality factors set out in CPR rule 44.3(5).  Any case of particular complexity does not belong in the fast track at all.”

 

Fast Track Fixed Recoverable Costs table

Complexity Band
Stage: 1 2 3 4
Pre-issue

£1,001 – £5,000

£104 + 20% of damages £988 + 17.5% of damages £2,250 + 15% of damages + £440 per extra defendant
Pre-Issue

£5,001 – £10,000

£1,144 + 15% of damages over £5,000 £1,929 + 12.5% of damages over £5,000
Pre-issue

£10,001 – £25,000

£500 £2,007 + 10% of damages over £10,000 £2,600 + 10% of damages over £10,000
Post-issue, pre-allocation £1,850 £1,206 + 20 of damages £2,735 + 20% of damages £2,575 + 40% of damages + £660 per extra defendant
Post-allocation, pre-listing £2,200 £1,955 + 20% of damage £3,484 + 25% of damages £5,525 + 40% of damages + £660 per extra defendant
Post-listing, pre-trial £3,250 £2,761 + 20% of damages £4,451 + 30% of damages £6,800 + 40% of damages + £660 per extra defendant
Trial advocacy fee a. £500

b. £710

c. £1,070

d. £1,705

a. £500

b. £710

c. £1,070

d. £1,705

a. £500

b. £710

c. £1,070

d. £1,705

a. £1,380

b. £1,380

c. £1,800

d. £2,500

Counsel’s fees 

There is an element of ring fencing counsel’s fees in the Fast Track.

This applies to matters in Complexity Band 4, the details of which are set out above.

These fees are as follows:

Post-issue advice or conference –                                      £1,000.00

Settling defence or defence and counterclaim –                 £500.00.

 

Although I refer to the ring fencing of counsel’s fees, such a fee is also payable to a specialist lawyer instructed by the solicitors. This wording exists in the current rules in relation to the additional fee of £150.00 payable if the advice of counsel or a specialist lawyer is required to advise on quantum in a claim valued at over £10,000.00.

It is still not clear whether a specialist lawyer can be someone else in the same firm of solicitors, or has to be an outside lawyer.

For an additional fee of £150.00 under the current scheme, no one got too concerned about this.

However with potential additional fees throughout the case of £1,500.00, this should be clarified.

If one cannot instruct another lawyer in the same firm, then there is nothing to stop firms of solicitors having mutual arrangements whereby they refer these elements of work to each other on their cases.

There is nothing wrong with that – on of the reasons for instructing someone else is an independent view and a fresh pair of eyes.

In relation to what is a specialist lawyer Lord Justice Jackson says this:

“Does that mean ring fencing for barristers alone? No. Very often barristers will do the ring-fenced work and receive the ring-fenced fee. But on occasions the proper person to do the work and receive the ring-fenced fee may be a solicitor, for example the intended trial advocate. On some occasions the proper person to do the ring-fenced work and receive the ring-fenced fee may be a fellow of the Chartered Institute of Legal Executives with appropriate expertise. I shall use the phrase “counsel or specialist lawyer” to describe all such individuals.”

That is still not clear as to whether it can be a specialist lawyer in the same firm, but it appears that certainly a solicitor trial advocate in the same firm could be instructed.

This is potentially significant for solicitors, especially as the Band 4 advocacy fee is very substantially higher than the advocacy fee for Complexity Bands 1 to 3 as seen in the above table.

This may prove to be something of a doubled edged sword for counsel. The significant extra fees available may encourage firms of solicitors to engage and develop solicitor advocates to do this work and earn these extra fees whilst the routine preparation work is done by more junior staff.

This model fits well as the same fee is paid throughout the Fixed Costs Regime, whoever the work is performed by.

Thus a model of a junior lawyer preparing the case and taking advice from a more senior solicitor advocate within the firm as and when necessary, being paid for that advice, as well as any trial advocacy, may be an attractive one.

 

Noise Induced Hearing Loss Claims

There is a separate proposed matrix for such claims:

Stage NIHL claims with value less than £25,000
Pre-Issue

£4,000 + £500 per extra defendant (reduced by £1,000 if there is an early admission of liability or by £500 if settled before proceedings drafted)

Post-issue, pre-allocation

£5,650

+ £830 uplift per extra defendant

Post-allocation, pre-listing

£7,306

+ £1,161 uplift per extra defendant

Post-listing, pre-trial

£9,187

+ £1,537 uplift per extra defendant

Trial advocacy fee

Not agreed

“Counsel’s fees and trial advocacy fees. The CJC working group did not reach full agreement on these matters. I have considered the relevant material and the rival submissions made within the working group. I recommend that counsel’s fees and trial advocacy fees in NIHL cases should be the same as those which I propose for ‘Band 4’ cases in the next section of this chapter. Almost all NIHL claims are low value.  So, as set out below, the trial advocacy fee will generally be £1,380.”

Trial advocacy fee in NIHL claims

As seen above the trial advocacy fee was not agreed and Lord Justice Jackson says that generally the trial advocacy fee will be £1,380.00.

That is correct, although in claims valued between £15,001.00 and £25,000.00, the trial advocacy fee is £2,500.00

Here is paragraph 5.12 of the report:

“5.12 Trial advocacy fee. The NIHL working group accepted that in NIHL cases the trial advocacy fees should be higher, but they could not agree on a figure.  Having considered the rival arguments, I recommend the trial advocacy fee should be increased as follows for both Band 4 and NIHL cases:

(a)  Claim value up to £3,000                        Trial advocacy fee £1,380

(b)  Claim value £3,001 to £10,000             Trial advocacy fee £1,380

(c)  Claim value £10,001 to £15,000            Trial advocacy fee £1,800

(d)  Claim value £15,001 to £25,000           Trial advocacy fee £2,500

CPR rule 45.39, which provides some flexibility in respect of fast track trial costs will continue to apply.”

 

Advocacy fees generally

The advocacy fees appear in the table set out above and apply whether it is a junior lawyer conducting their first case or a senior QC or 30 year solicitor or whatever.

Reference to a, b, c and d are to the value of the claim as follows:

a – A claim valued at up to £3,000.00

b – A claim valued at between £3,001.00 and £10,000.00

c – A claim valued between £10,001.00 and £15,000.00

d – A claim valued at between £15,001.00 and £25,000.00.

 

Review

The existing figures have been uprated for inflation – around 4% using the Services Producer Price Index.

Lord Justice Jackson proposes that the figures be reviewed every three years.

 

Also see:

FIXED COSTS COURSE

FIXED RECOVERABLE COSTS: LJ JACKSON’ S REPORT HERE

FIXED COSTS REPORT OVERVIEW: POST 1

FIXED COSTS AND THE BAR: POST 2

FIXED COSTS AND PART 36: POST 3

 

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Written by kerryunderwood

August 3, 2017 at 11:04 am

Posted in Uncategorized

6 Responses

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  1. Kerry, what do you make of this?

    Band 2: RTA personal injury (within Protocol), holiday sickness claims.
    Band 3: RTA personal injury (outside Protocol), ELA, PL, tracked possession claims, housing disrepair, other money claims.

    What RTA personal injury claims would fall into Band 3? All of them start off in the Protocol and then fall into FRC thereafter for one reason or another? Are we talking about the handful of cases that are deemed too technical from the outset? I thought there was still an escape clause? Something seems off?

    Jonathan

    August 10, 2017 at 9:38 am

    • Jonathan

      “Other fast track personal injury claims which are excluded from the Protocols for Low Value RTA,ELA and PL claims” – see Chapter 5, paragraph 3.2.
      Thus in the context of RTA, this will pick up those matters excluded from the portal process, which currently do not go in to the Fixed Recoverable Costs scheme, for example:

      breach of duty by a non road-user;
      where either party is a protected party;
      where the claimant is bankrupt;
      where the defendant’s vehicle is registered outside the UK;
      where there is no bodily injury, but only psychological injury;
      where the claimant or defendant acts as personal representative of a deceased party.

      All dealt with at pages 589-621 of my new book Personal Injury Small Claims, Portals and Fixed Costs 🙂

      Kerry

      kerryunderwood

      August 10, 2017 at 11:52 am

      • I’ve got the books – I’ll stop using them as a doorstop and bring them into the office 😉

        Joking aside they are most useful; as is evidenced above! Thanks Kerry, much appreciated!

        Jonathan

        Jonathan

        August 10, 2017 at 12:58 pm

  2. High value cases that get allocated to the FT?

    Jonathan

    August 10, 2017 at 9:45 am

    • Yes, think it would include those as well, but primary purpose is to deal with, and include, lower value claims that are excluded from entering the portal process.

      Kerry

      kerryunderwood

      August 10, 2017 at 11:53 am

  3. You must have big doors 🙂

    kerryunderwood

    August 10, 2017 at 1:19 pm


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