The expansion of the fixed recoverable costs (FRC) regime in October 2023 was one of the most significant reforms to civil litigation in England and Wales in recent years. Introduced following recommendations from the Ministry of Justice and implemented through changes to the Civil Procedure Rules, the reforms aimed to bring greater certainty, proportionality, and efficiency to legal costs.

However, as the regime begins to bed in, questions are increasingly being raised across the legal sector: has the FRC regime truly delivers on its objectives?

 

What Was the FRC Regime Designed to Achieve?

The fixed recoverable costs regime was designed to address long-standing concerns about the unpredictability and escalation of legal costs in civil litigation.

By introducing a structured costs regime with fixed amounts recoverable depending on the type and stage of a claim, the reforms aimed to:

• Provide certainty for both parties
• Reduce disputes over legal costs
• Encourage early settlement
• Improve access to justice

The expansion in October 2023 extended FRC beyond traditional personal injury claims, including many cases within the fast track and the newly created immediate track.

 

Early Signs of Success

There is some evidence to suggest that the FRC regime has delivered benefits, particularly in terms of predictability.

For lower-value and less complex cases, fixed recoverable costs provide clarity on the amount of costs that can be recovered by the successful party. This can assist parties in making informed decisions about whether to pursue or defend a claim.

The structured nature of the regime has also reduced the need for detailed assessment in certain cases, which can streamline the costs recovery process and reduce the burden on the courts.

In fast rack and intermediate track cases, the ability to anticipate legal costs from the outset is seen by some as a positive development.

 

Ongoing Challenges and Criticism

Despite these advantages, the FRC regime has not been without criticism;

Concerns Over Proportionality

One of the most common concerns is that fixed recoverable costs do not always reflect the actual work required in a case. In more complex matters within the intermediate track, the fixed amounts may be significantly lower than what would be considered reasonable under a traditional hourly rates model.

Thid can place pressure on legal representatives and may impact the level of resource that can be devoted to certain cases.

 

Impact on Access to Justice

There are also concerns that the FRC regime could have unintended consequences for access to justice.’

Where fixed costs apply, some firms may be less willing to take on cases that fall close to the upper limit of the regime, particularly If the wok required is disproportionate to the recoverable costs. This may be particularly relevant in certain types of personal injury to civil litigation claims.

 

Complexity Within the Regime

Although the regime was intended to simplify costs, its expansion has introduced new layers of complexity.

The introduction of the intermediate track, combined with the detailed provisions under the Civil Procedure Rules (including Part 45), has created challenges around:

• Track allocation
• Determining when FRC apply
• Handling cases that move between tracked
• Managing mixed claims involving fixed and non-fixed costs

As a result, dispute have not been eliminated, they have simply shifted in focus.

 

The Position on Multi-Track Cases

One area where the FRC regime has clearly not extended is the multi-track.

Multi-track cases, typically involving higher value or more complex issues, remain outside the scope of fixed recoverable costs. Instead, costs are assessed based on reasonableness and proportionality.

This creates a divide within the costs regime, where similar issues may be treated differently depending on allocation, leading to further debate about consistency and fairness.

 

The Role of the Civil Procedure Rules Committee

The Civil Procedure Rules Committee continues to play a key role in monitoring and refining the FRC regime.

Given that the reforms only came into force in October 2023, it is still relatively early to draws definitive conclusions. Ongoing feedback from practitioners, alongside emerging case law, is likely to influence future adjustments to the regime.

The Ministry of Justice has indicated that the reforms may evolve over time, particularly if evidence emerges that the regime is not achieving its intended outcomes.

 

Has the FRC Regime Failed?

It would be premature to conclude that the FRC regime has failed entirely. In some areas, particularly lower-value claims, it appears to be achieving its goal of improving certainty and controlling legal costs.

However, the criticisms highlight that the regime may not yet be fully delivering across all areas of civil litigation. Issues around proportionality, complexity, and access to justice suggest that further refinement may be needed.

Rather than a clear success or failure, the current position is better understood as a regime still in transition.

 

Looking Ahead

As more cases are processes under the expanded FRC regime, a clearer picture will emerge.

Future developments are likely to be shaped by:

• Judicial interpretation of the rules
• Feedback from practitioners
• Further amendments by the Civil Procedure Rules Committee

For now, the key challenge is ensuring that the regime balances certainty with fairness, particularly in cades that sit at the margins of the fixed costs framework.

 

How Greener Costs Can Assist

The evolving nature of the fixed recoverable costs regime means that understanding how the rules apply in practice is more important than ever.

Greener Costs provides specialist advice on all aspects of civil litigation costs, including the application of fixed recoverable costs, disputes under Part 45, and strategic guidance on complex or borderline cases.

Whether you are navigating the fast track, intermediate track, or dealing with issues arising from cases that fall outside the FRC regime, expert support can help ensure that costs are managed effectively and proportionately.

If you require guidance on the FRC regime or civil litigation costs more broadly, contact Greener Costs today.

📞 Call: 01204 263047
📧 Email: info@greenercosts.co.uk

 

Frequently Asked Questions

1. What is the purpose of the FRC regime?

The FRC regime is designed to control legal costs in civil litigation by setting fixed amounts that can be recovered, improving certainty and reducing disputes.

2. Does the FRC regime apply to all cases?

No, it mainly applies to fast track and intermediate track cases, while multi-track cases are generally excluded and subject to detailed assessment.

3. Why has the FRC regime been criticised?

Criticism focuses on concerns that fixed costs may not reflect the actual work required, particularly in more complex cases within the regime.

4. Has the FRC regime improved cost certainty?

In many lower-value cases, it has increased predictability, allowing parties to better understand potential legal costs from the outset.