The Bar Council has submitted a strong response to the Ministry of Justice (MoJ) consultation on fixed recoverable costs calling for the system to be reformed to help reduce the backlog and ensure pay for work done.

The consultation response, submitted today in conjunction with the Personal Injury Bar Association (PIBA), welcomes the positive steps taken by the MoJ but highlights further areas for reform and action, including:

  • In cases where a Fast Track and Intermediate Track case (covering most money cases of a value between £5,000 and £100,000) settles or is otherwise vacated shortly before trial there should be the ability for the wronged party to recover part, at least, of the fee incurred in engaging a trial advocate who has prepared the case, advised on the merits of the case and enabled the settlement.
  • A proper rate of inflation, which reflects the actual cost of legal services (not some more general benchmark), should be applied to the fixed advocacy fee. Prior to this year’s reforms what may be recovered from the perpetrator by victims of a civil wrong in respect of the trial advocate’s advice and representation through the fixed advocacy fee has not increased since 2013 and, in some cases, since 2007.

The Bar Council is due to meet with senior MoJ officials on 11 September to discuss the issues surrounding fixed recoverable costs in light of the consultation and the Ministry of Justice’s response to the Bar Council’s letter before action.

Commenting, Sam Townend KC, Vice Chair of the Bar Council, said:

“Positive steps have been taken by the Ministry of Justice to ameliorate some of the problems with the fixed recoverable costs scheme in advance of its expansion. We particularly welcome the commitment to provision for Inquest costs to be separately recoverable, though we have comments on the detail.

“However, there are aspects of the reforms that remain unreasonable and arguably irrational.

“The costs regime should help, not hinder, settlement and getting the backlog down, especially where improvements to the scheme cost the taxpayer nothing more. And all workers, including barristers, should be paid a reasonable fee for work done, otherwise they will be inclined to stop doing that work.

“A proper rate of inflation must be applied to the fixed advocacy fee. The alternative is a two-tier system where those who can afford it pay more senior barristers to defend the claim, while the claimant victims are able only to employ less experienced practitioners.

“We welcome the recent and continuing engagement with officials and very much hope that the Government positively reflects on our points in its response to the consultation so we can avoid the need for judicial review.”