A central issue of contention is the “nominal” recoverable fees proposed for costs-only proceedings, which the ACL believes do not accurately reflect the actual work required. This criticism aligns with the ACL’s broader view that the Ministry’s approach is “piecemeal and unreasonable,” raising serious concerns about access to justice and the adequacy of the proposed fees.

One key recommendation from the ACL is to delay the implementation of the new rules until at least April 2024, emphasizing the need for more comprehensive reforms.

The ACL has consistently opposed additional FRCs, fearing they will hinder access to justice. They also call for a comprehensive review of costs provisions in the Solicitors Act 1974, echoing the Master of the Rolls’ view last year.

Concerns about timing

The ACL has taken issue with the six-month gap between the implementation of the new FRC regime and the proposed changes, which they argue will create confusion and inconsistency in the application of rules.

Inadequate fees

The ACL criticized the “one size fits all” approach of a condensed assessment procedure for FRC-related disputes, particularly those focused on interpreting the rules. They argue that the proposed costs (£500) are inadequate for cases that demand a high level of expertise. Rather, the organisation advocates for a flexible cost cap based on the value of the claim.

Regarding fixed costs for issuing part 8 costs-only proceedings, the ACL members believe the proposed levels (£300 for a claimant and £150 for a defendant) are insufficient for the necessary work involved. They anticipate that these low caps will not deter the initiation of proceedings, as they are often used to resolve disagreements over costs.

Critical negligence claims: too complex?

The ACL argues that clinical negligence claims should be excluded from the extended FRC regime due to their complexity. They highlight the significant investigations and costs related to expert evidence, which the proposed FRCs may not adequately cover. The ACL suggests postponing the inclusion of clinical negligence claims until the Department of Health & Social Care’s separate FRC scheme for cases up to £25,000 is published and the extended FRC regime has settled for other claim types.

ACL chair Jack Ridgway says: “Irrespective of our opposition to the FRC extension on principle, it is clear that the government’s piecemeal approach to reform is only going to cause more problems than it purports to solve. It fails to give the legal market sufficient time to plan, prepare and adapt to what will be a significant upheaval.

“The Ministry of Justice needs to fix the Solicitors Act before tipping a new load of cases into the system. Otherwise, it will fail in its stated aims of improving access to justice and providing clarity and certainty to all parties in respect of the costs of civil litigation.”