EWJ Dec 2023 - Journal - Page 15
1. Only one issue is in dispute
It is also hoped that by creating a clear, transparent
and predictable costs structure, parties considering litigation will have sufficient information as to their potential costs exposure at the outset, thereby allowing
them to make an informed decision as to the merits of
proceeding with legal action.
2. The trial is not expected to last longer than one day,
including:
l Personal injury claims where liability or quantum
is in dispute
l Non-personal injury road traffic claims
How will this impact businesses and individuals
involved in disputes?
Depending on your viewpoint, the changes can be
seen as a step forwards or backwards. On a positive
note, the changes mean that any party whose claim
falls within the FRC regime and wishes to commence
proceedings against another party after 1 October
2023, will know with a far greater degree of certainty,
what their potential adverse costs risk is likely to be.
l Defended debt claims.
Complexity Band 2: Any less complex claim where
more than one issue is in dispute, including personal
injury accident claims where liability and quantum are
in dispute.
Complexity Band 3: Any more complex claim where
more than one issue is in dispute, but which is unsuitable for assignment to complexity band 2, including
noise induced hearing loss and other employer’s
liability disease claims.
On the other hand, the FRC regime may well erode a
party’s success, in financial terms, by the difference between the FRC and the amount of costs that are actually incurred. The legal costs incurred in taking a
claim to trial with the assistance of lawyers, are likely to
exceed the FRC allowed, and therefore parties to litigation are going to have to be ready to accept that they
will have a costs recovery shortfall, requiring a careful
cost benefit analysis at the outset.
Complexity Band 4: Any claim which would normally
be allocated to the Intermediate Track, but which is
unsuitable for assignment to complexity bands 1 to 3,
including any personal injury claim where there are
serious issues of fact or law.
The parties are able to agree a complexity band by
consent, but the decision ultimately rests with the
Court, which retains discretion to assign a claim to
whichever complexity band it deems the most appropriate. The complexity band directly affects the level
of FRC that will be awarded.
How we can help
Given the complexity of the new FRC regime and the
various exceptions and nuances that arise, any party
bringing or defending a claim should take early legal
advice, to understand the level of costs that they may
recover (if successful) and be liable to pay (if unsuccessful) in order to make an informed decision.
Change 2: Calculation of the FRC
The normal principles still apply insofar as the
winning party will ordinarily expect to receive an
order for a proportion of their costs to be paid by the
losing party. However, the costs that a winning party
can recover will now be capped at a prescribed level,
no matter how has been incurred.
Mr John Yeh
Consultant Spinal Surgeon & Neurosurgeon
The level of the cap will be determined by several
factors including the track and complexity band the
claim is assigned to, the stage the claim reaches and the
amount of damages the winning party obtains. These
values are set out in tables contained in the new Practice Direction 45 of the Civil Procedure Rules (CPR).
BA (Hons), MA, MB BChir (Cantab), MD, FRCSEd,
FRCSEd (NeuroSurg)
Mr Yeh is greatly experienced in spinal surgery (except for children aged
less than 16 years) undertaking around 350 procedures per year, with daily
outpatient clinics. He sees patients with neck, upper back and lower back
problems/injuries as well as trapped nerves.
He is a Neurosurgical and Spinal Specialist with a specialist clinical
The new FRC rules do allow for uplifts (or reductions)
on the FRC value set out in the table in situations
where, for example, a party has displayed unreasonable behaviour, or by reference to the location of the
successful party’s legal team.
interest in spinal lesions and symptoms, spinal biomechanics, spinal
implants and instrumentation, minimal invasive spinal surgery and
spinal cord regeneration. Mr Yeh publishes papers and book
chapters widely, undertakes research and is a PhD examiner at
Kings College and Imperial College, London.
Mr Yeh commenced medico-legal work in 2005.Undertaking
Why have the Government made these changes?
The changes were initially announced by the
Government in September 2021, but there have been
delays in implementing the requisite changes to the
law in order to underpin the new regime. The
changes are a direct result of Lord Justice Jackson’s
2017 report on Fixed Recoverable Costs.
around 24 cases of personal injuries and 2 cases of negligence
(after careful vetting) per year, and has also attended courts as an
expert witness. All reports are completed in line with the guidelines
of the Academy of Experts and Expert Witness Institute, and are CRP
compliant. Mr Yeh can see patients within a week of receiving
instruction and can normally produce a report within 3-6 weeks or l
onger pending complexity of the case.Mr Yeh also undertakes urgent cases.
Also available for consultations at:
Highgate Private Hospital, 17-19 View Road, Highgate, London, N6 4DJ
The end goal is that the changes will reduce overall
costs for litigants, by encouraging efficient working
practices. There is also the hope that by streamlining
and limiting the amount of work that needs to be
done, cases can be dealt with more expediently where
their complexity permits.
EXPERT WITNESS JOURNAL
The Princess Grace Hospital, 42-52 Nottingham Place, London, W1U 5NY
The Holly Private Hospital, High Rd, Buckhurst Hill, Essex, IG9 5HX
Text: 07759 152113 - Fax: 0872 115 7051
Email: brain.spine.care@gmail.com
Address: London Independent Hospital, 1 Beaumont Square, London, E1 4NL
13
DECEMBER 2023