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A summary of recent developments including the response published by the Ministry of Justice on its personal injury discount rate January 2023 call for evidence, new rules extending the scope of fixed recoverable costs, trends in PSLA awards, the Civil Justice Council’s final report on pre-action protocols, and an update on the Retained EU Law (Revocation and Reform) Act.
UK Government publishes its response to personal injury discount rate call for evidence
Following its call for evidence to explore the option of a dual or multiple rate personal injury discount rate (PIDR) system, the Ministry of Justice published its response on 11 September 2023.
The document offers “a high-level summary of the submissions provided by stakeholders” only rather than recommendations or commitments.
The next step is for all submissions to be shared with the newly formed PIDR Expert Panel that will advise the Lord Chancellor as part of the next PIDR review. That review is required to commence prior to 15 July 2024.
Contacts: Christopher Malla and Lauren Gosnell
Related items:
- PI discount rate consultation closes ahead of 2024 review
- Personal injury discount rate: a global snapshot
- Personal injury discount rate in England and Wales: exploring the options
Fixed recoverable costs are here
Fixed recoverable costs (FRC) now apply to most civil litigation claims in England and Wales valued up to £100,000.
However, just over two months before the rules came into force, the UK Government issued a consultation on the following issues:
- Whether costs on assessment should be fixed.
- Whether there should be fixed costs for Part 8 (costs only) claims.
- The recoverability of, separately, (a) inquest costs and (b) restoration proceedings, and how this should be dealt with in the CPR.
- The issue of providing for the recoverability of advocates’ preparation in the CPR, in cases which (a) are settled late or (b) are vacated.
- Whether the fixed trial advocacy fees now in Practice Direction (PD) 45 of the CPR should be further uprated for inflation, and by how much.
- Whether to make explicit in CPR 26.9(10)(b) in respect of clinical negligence claims, that an early admission of liability must be made in the pre-action protocol letter of response.
It is proposed that, assuming agreement by the Civil Procedure Rule Committee by December, amendments could be included in the Civil Procedure Rules SI for implementation in April 2024.
Contact: Lewis Thompson
Related items:
- Fixed recoverable costs update: judicial review and last minute consultation
- The extended fixed recoverable costs regime is here
- Our fixed recoverable costs (FRC) calculator
Increase in PSLA awards being sought as a result of inflation
Of concern to the injury sector are recent submissions being made by claimant firms seeking an uplift on the Judicial College Guidelines (JCG) following the decision in Blair v Jabar [08.03.23]. In this case, the claimants successfully argued that the PSLA awarded should be increased due to "the unexpected and massive increase in inflation".
The current edition of the JCG was published on 11 April 2022, nearly a year ago. A revision appears inevitable and likely.
Although the decision in Blair is not binding, insurers should carefully consider their reserves and offers of settlement.
Contact: Ian Davies
The Civil Justice Council publishes final report on pre-action protocols
The Civil Justice Council (CJC) working group published its part one response following an interim report and consultation on pre-action protocols (PAPs) which closed in January 2022. The report looks at the potential benefits of digitising pre-action processes and the general PAP.
The working group makes numerous recommendations including the creation of a new General PAP to replace the existing Practice Direction Pre-Action Conduct and compliance to be made mandatory except in urgent cases. The report also proposes that the Ministry of Justice should look at the feasibility of developing a general on-line portal linked to the main PAP steps but capable of being linked to existing on-line portals such as OCMC and damages claims.
Part two will focus on potential reforms to specific PAPs and the creation of new PAPs.
Contacts: Fiona Hamilton-Wood and Ian Davies
The Retained EU Law (Revocation and Reform) Act 2023: ‘bonfire’ of EU rules?
The Retained EU Law (Revocation and Reform) Bill (the Bill) received Royal Assent on 29 June 2023. However, it has not been a smooth journey for the legislation which received much controversy along its journey to becoming law.
The Act will:
- Revoke (or sunset) around 600 identified retained EU law or implemented EU law set out in Schedule 1 of the Act, by the end of 2023;
- Abolish the general principles and supremacy of EU law, effective after 31 December 2023;
- Change the name of retained EU law to ‘assimilated law’;
- Grant powers to modify retained EU law by Statutory Instrument;
- Enable the restatement, revoking and replacement of certain secondary REUL and secondary assimilated law; and
- Make it easier for UK domestic courts to depart from retained EU case law.
While the sweeping sunset clause has been abandoned, the Act opens the door for potentially significant divergence from EU law in the future, along with ministerial power to amend assimilated law.
Contact: Rachel Moore
United Kingdom