With effect from 01 October 2023 the landscape of injury litigation has been churned up, yet again. This time, track changes have been made which have wide implication for injury victims and personal injury lawyers.
Prior to that date there were three tracks, known as the Small Claims Track, the Fast Track and the Multi Track. The track into which an injury claim was “allocated” depending upon its estimated value. In broad terms, a claim with a likely value of £25,000 or more went onto the Multi Track and those of lower values went on the Fast Track. Very low value claims went on the Small Claims Track, by virtue of which legal costs were virtually irrecoverable. The significance of the distinction between the Fast Track and the Multi Track was the difference in the way costs were recovered, and how much was capable of being recovered.
In a Fast Track claim for an injury caused by a Road Traffic Accident the costs (when fixed) allowed the sum of only £500 plus VAT and disbursements such as reasonable medical report fees to be recovered in claims with a value of less than £10,000, if settlement took place prior to issue, and within the MOJ Claims Portal. However, on a claim with a value in excess of £25,000 allocated to the Multi Track the Claimant’s reasonable legal expenses “to be assessed if not agreed” were capable of recovery. The distinction meant that it was a very real advantage to have a claim allocated to the Multi Track, in terms of the “in your pocket” outcome of a claim.
However, the vast raft of claims with a value of between £25,000 and £100,000 now fall to be allocated to what is known as the Intermediate Track, which means that fixed fees only are recoverable, depending upon the level of complexity of the case, the value of the claim, and the stage at which the claim is finalised.
This expansion of the fixed fee regime only applies to claims in which the cause of action arose after 01 October 2023. In accident claims this date is normally the date of the accident. So, if you were unlucky enough to be injured you may be lucky enough to avoid the expansion of the fixed fee regime if you suffered the injury before 01 October 2023.
Clinical negligence claims are likely to be affected by tracking and costs rule changes taking place next year when it is likely that the “cut off” date will be the date of submission of the “Letter of Claim” pursuant to the Pre-Action Protocol for the Resolution of Clinical Disputes. We can await plenty of satellite litigation around what constitutes a “Letter of Claim”, to avoid being caught by the new rules, it seems.
“Yet again, the rights and remedies of innocent victims face erosion, to protect the profits of insurance giants and the public purse“, Director and Injury Lawyer Marc Folgate said of what he has seen as a decade-long trend.
“It seems strange that the aim of the law is to put people, in so far as money might allow, in the position that they would have been, had an accident, or medical incident for which they were not responsible, not occurred. The implementation of any system which caps the legal fees they are permitted to recover is entirely at odds with that principle, although I accept that it furthers the proportionate pursuit of claims and discourages lower value claims to be made in the first place.”
He continued by pointing out that the system was also inequitable in that it favoured Claimants with greater earning capacity.
“To put it quite simply, a person who was earning £15,000 per annum is going to potentially be hit much harder than someone earning £50,000 annually, if he or she is off work and losing income. Not least because they are more likely to escape the confines of the Fast and Intermediate Tracks altogether, but also because even if they don’t, the fixed costs are calculated partly by reference to a percentage of damages awarded, or agreed“.