Lord Justice Jackson's Supplemental Report on Fixed Recoverable Costs

Lord Justice Jackson's much anticipated Supplemental Report on Fixed Recoverable Costs ("FRC") was published by the Courts and Tribunals Judiciary on 31 July 2017.  Amongst a number of proposals and recommendations, this report discussed the possibility of a FRC regime for cases worth up to £250,000. 

Reference was made in the report to the success of the Intellectual Property Enterprise Court which applies a capped recoverable costs regime, with a case management process designed with that in mind.

Lord Justice Jackson's recommendation is that a FRC pilot be launched in the London Mercantile Court, as well as the Mercantile, TCC and Chancery courts in Leeds and Manchester, for cases up to £250,000 (which effectively means cases between £100,000-£250,000 given that the pilot would only run in the High Court and cases below £100,000 are generally heard in the County Court).  Some of the key aspects of the pilot would include:

  • No automatic disclosure - the parties' statements of case are to be accompanied by core documents on which they intend to rely;
  • Limited witness statements, if ordered at all, and a general rule of no more than two witnesses giving oral evidence at trial;
  • Expert evidence will not generally be permitted unless the cost can be justified and it is considered it would further the overall aim of the pilot;
  • The trial is to last no more than two days;
  • There is a cap on costs for each stage and an overall cap of £80,000.  This £80,000 does not include VAT, court fees, wasted costs, and costs of enforcement.

This recommendation, along with the others in the report, is subject to approval from the Government.  If the pilot goes ahead and is successful, Lord Justice Jackson has recommended that "such a regime should be made available at the Judge's discretion for any suitable case in the Business and Property Courts or the Business and Property Lists of the County Court".  He also notes that "It may well become appropriate to extend the regime to cases up to £500,000, but that must be for future consideration".

For cases falling between £25,000 - £100,000, Lord Justice Jackson has made recommendations of an 'intermediate track' with four bands of FRC depending on complexity.  Cases on the intermediate track will also be subject to a more streamlined and restricted procedural process (for example, the total length of all witness statements is not to exceed 30 pages). 

The full report can be found here.

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