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The CPRC notes of their November 2021 meeting have been published and includes the following costs relevant updates:
Fixed Recoverable Costs
The overall intention is to define the scope and parameters of FRC (and the associated
changes), while outlining the new procedures that will ensure cases are appropriately
allocated and managed within the new FRC architecture. The MoJ’s view is that the extension of FRC will enhance access to justice by making recoverable costs more certain and proportionate,
while enabling parties in civil proceedings to plan their litigation more effectively
Given the complexity of costs related reforms and conscious that there are already various
additions (for example the 2013 reforms) to the rules, the policy view is to commence a complete re-draft of CPR Part 45 to simplify and streamline the rules. This should ensure that the objectives of clarity and proportionality in civil litigation are appropriately reflected in the rules.
MoJ are also considering certain policy issues, as outlined in the consultation response, including whether further changes need to be made in respect of recoverable Disbursements and Qualified One Way Costs Shifting (QOCS), in order to ensure the integrity of the extended FRC regime.
The intention is to implement the extension of FRC in October 2022 and the MoJ is keen to work in collaboration with the CPRC to ensure the smooth delivery of these reforms. The Chair further highlighted that Part 45 also covers the Intellectual Property and Enterprise Court (IPEC) and there were separate proposals to update those rules.
It has been recognised the there was a need to consider issues of vulnerability as part of the review and this was noted within the MoJ response.
Qualified One Way Costs Shifting
The Chair set out the background to the case of Ho -v- Adelekun  UKSC 43. The judgment raises important issues as to whether there is jurisdiction in a Qualified One Way Costs Shifting (QOCS) case to allow costs ordered in favour of a defendant to be set-off against costs ordered in favour of a successful claimant. It was agreed that the Costs Sub-Committee need not consider this matter until further consideration had been given to the wider work on FRC and costs generally.
Please follow this link to hear Deputy Master Peter Haworth’s views on Ho -v– Adelekun in our Bacon Broadcast.
It was resolved:
• The FRC reforms will be considered by the Costs Sub-Committee, with additional co-opted members to ensure suitable industry balance and expertise.
• The Costs Sub-Committee’s consideration of the Supreme Court’s Judgment in Ho -v
-Adelekun  UKSC 43 will be deferred until the policy imperative on QOCS is known.
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Published 9 December 2021
Author – Sue Fox
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