Cross border claims and extended Fixed Recoverable Costs (FRC): where are we now?

Fixed recoverable costs (FRC), were first introduced in England & Wales in 2013 in respect of fast track claims, ie valued at less than £25,000, for damages for personal injuries arising out of accidents in three broad settings: road traffic, employers’ liability and public liability.

Background: from 2013 to the new 2023 rules for FRC

The Civil Procedure Rules (CPR) were amended at that time to set out tables of recoverable costs based on the type of claim, the procedural stage at which it concluded, and the amount of damages recovered. Importantly, and in broad terms, these claims are governed by specific Pre-Action Protocols (PAP) and must initially be notified and processed using the Claims Portal Company platform. The FRC and Claims Portal schemes are now over a decade old and generally well understood by parties, practitioners, and the courts.

A judge-led report in 2017 recommended (a) increasing the scope of FRC to all civil claims valued at less than £100,000 and (b) introducing a new intermediate court track, with its own rules and procedures, for these cases. The Ministry of Justice consulted on extending FRC in 2019 and, after inevitable delays related to the Covid-19 pandemic and following extensive preparatory work by the Civil Procedure Rule Committee, a separate regime of FRC for the new intermediate track was introduced on 1st October 2023. Non-injury claims issued on or after this implementation date will be caught whereas, for injury claims, the cause of action must arise on or after that date.

At the same time, the fast-track FRC scheme was also expanded and re-fashioned. It now - ie from 1st October 2023 - comprises four “complexity bands” rather than the three injury types noted above (in essence, the additional category was introduced to cater for non-injury cases). The intermediate track also features four “complexity bands” (although they are defined differently from those in the fast track). An obvious point nevertheless worth making is that those claims which now fall within the scope of the extended FRC scheme for the intermediate track will no longer be subject to costs budgeting because of the application of the new FRC rules.

Further detail on how the extended FRC developed in the run-up to 1st October can be found in our earlier articles:

Extending fixed recoverable costs in civil claims: October 2023 implementation confirmed

Extending fixed recoverable costs in civil claims: rules and costs figures now published

Fixed recoverable costs now in force form 1 October 2023

An outline of approaches to costs in cross-border claims under the new 2023 FRC rules, looking first at costs and second at procedure

I. Costs issues

In the fast track.

The starting point here is actually how cross-border injury claims were addressed in the 2013 FRC fast-track scheme. In broad terms, they were generally excluded and costs could be recovered based on work done and guideline hourly rates (GHR).

1. For road traffic accident claims, claims with a cross-border element were excluded. This results from the relevant PAP requiring that the accident must be “caused by, or arising out of, the use of a motor vehicle on a road or other public place in England and Wales” and, in addition, excluding claims “where the defendant’s vehicle is registered outside the United Kingdom.”
2. In employers’ liability (EL) and public liability (PL) claims, the cause of action must similarly arise here, given that the EL & PL PAP excludes claims “for personal injury arising from an accident or alleged breach of duty occurring outside England and Wales”, although there is no provision about the defendant’s location. The result is that fast-track injury claims against an employer or a business based in another country are not excluded from FRC as long as the accident occurred here. This is unlikely to be problematic in practice given that an EL or PL accident occurring here would strongly suggest that the defendant would have some significant operational presence in the jurisdiction, thus enabling service to be effective.

In the intermediate track.

The intermediate track cannot apply to injury claims in which the cause of action is before 1st October 2023.

In the multi-track.

Cross-border injury claims of higher value arising before the 2023 FRC extension are - clearly - not subject to the new provisions and may still be pursued in England & Wales (subject to meeting any appropriate test of jurisdiction). They would be managed in the multi-track and costs would be recovered based on work done and guideline hourly rates (GHR). The general Personal Injury PAP clearly envisages such cases being pursued here: “Where the accident occurred outside England and Wales and/or where the defendant is outside the jurisdiction, the time periods [for acknowledging the claim and for the defendant’s response] should normally be [doubled]”.

II. Procedural & case management topics

In the fast track.

There are no relevant changes to the PAPs in respect of cross-border injury claims. The position therefore remains as above, ie in broad terms where the cause of action arises outside England & Wales after 1st October 2023, fast track FRC (at 2023 levels) do not apply because of the provisions in the relevant PAPs, which have already been set out.

The question arises, therefore, whether these claims, which are by definition valued at less than £25,000, should now be case-managed either (i) in the new intermediate track and subject to its FRC or (ii) as before, in the multi-track, and subject to budgeting and hourly rates?

The answer is not immediately clear from the new rules and the point may need to be tested in court, although parties would be well-advised to agree pragmatic solutions in their claims rather than seeking a precedent on a matter of principle.

In the intermediate track.

One of the key features of the 2023 FRC rules is the creation of this additional court track. As was the case in the fast track, the 2023 FRC rules do not amend the PAP for these purposes.

Consequently, our view is that the new intermediate track FRCs should apply to cross-border injury claims valued at more than £25,000 and in which the cause of action arises outside England & Wales after 1st October 2023. This would bring control by FRC to mid-value cross border cases for the first time. It is a very different outcome from that under the 2013 scheme (above), where mid-value claims would be subject to hourly rate recovery in the multi-track.

In the multi-track.

The costs budgeting rules and hourly rate approach of the multi track will now be reserved for those cross-border injury claims (assuming that the cause of action arises outside England & Wales after 1st October 2023) that (a) are valued at more than £100,000 or (b) or of lower values, but which feature elements of complexity rendering them unsuitable for either of the other two court tracks.

Commentary

In fast-track cross-border injury claims, the 2023 FRC rules largely amount to ‘business as usual’. Virtually all cases in which the cause of accident occurs outside England & Wales or after 1st October 2023 are outside the new FRC scheme and therefore remain subject to the hourly rate approach.

That said, there might in theory be some fast-track product liability injury claims in which the answer to whether the “accident or alleged breach of duty [occurred] outside England and Wales” is not entirely clear. But the lower values involved here may tend to suggest that parties would find compromises on costs issues more attractive than taking a particular ‘scope’ point to trial.

It is in the new intermediate track that serious questions of the approach to costs may arise. Cross-border claims are not expressly excluded from this track and should in our view, on the face of the new rules, be subject to the new FRC scheme (subject always to any relevant tests of jurisdiction being met).

Multi-track claims will remain outside the scope of extended FRC and therefore subject to guideline hourly rates (GHR).

The table below summarises* the overall position, in which the eye-catching outcome is the application of FRC to intermediate track claims in which causes of action arise outside England & Wales.
 

Personal injury claims: fixed recoverable coss (FRCs) and guideline hourly rates (GHRs)

[*This table is just a high level summary and should not be regarded as detailed technical advice.]
 

It is foreseeable that those acting for claimants could seek to sidestep this particular outcome by arguing for allocation to the multi-track from the outset because of complexities claimed to be intrinsic to the cross-border nature of the claim. It is equally foreseeable that those acting for defendants would argue in the opposite way. It is worth recording out that the Commons Justice Committee asked the Ministry of Justice (MoJ) the following question on this point.

Whether further guidance will be provided for when cross-border claims and/or those with any type of international element, will be deemed ‘complex’ and eligible for additional costs? The correspondent raised concerns that it may have been assumed that such claims will continue to be dealt with by UK-based intermediaries which in their experience is incorrect. They argue that cross-border claims and/or those with an international element always give rise to complexities which would require specialist legal representation.

In responding, the MoJ declined to provide an answer, with the strong implication being that this is a matter of interpretation of the new rules and hence for the courts.

The Ministry of Justice do not plan to issue further guidance on this matter. As is standard practice the Civil Procedure Rules and Practice Directions are intended to stand on their own. I do not think it is appropriate for the Government to provide separate guidance on the rules and Practice Directions.

The ultimate resolution of this point - and others relating to matters such as: the scope of the FRC, the “exceptional circumstances” required to ‘escape’ from FRC entirely, as well as the precise approach to decisions about complexity bands - will inevitably require some test litigation. The possibility of parties agreeing to contract out of FRC and thereby avoiding having to test these sorts of points is not, in the short term at least, open to them because of the way the 2023 FRC rules were drafted. However, a revision to the rules that will permit ‘contracting out’ of FRC has just been published and will take effect from 6 April 2024.

The key point to take from this article is that despite the very detailed rules and practice directions for FRC taking effect from 1^st October last year, it is not yet entirely clear whether mid-value cross-border injury claims pursued in England & Wales come within the scope of the extended FRC scheme 

The debate on this is still very much alive. Until it is resolved one way or the other, parties and their advisers may be able to strike acceptable practical compromises and should take care not only in identifying potential test cases but also in avoiding ‘not seeing the wood for the trees’ when considering what may appear to be robust issues of principle.