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I recently mentioned the fact that the Legal Aid, Sentencing and Punishment of Offenders Bill seemed to be strangely silent as to qualified one-way costs shifting, the 10% general damages uplift or proportionality changes.
I am therefore grateful to Kerry Underwood for pointing out that the Government has made it clear that only the changes to the conditional fee regime require primary legislation. Paragraph 35 of the White Paper says under Next Steps:
“Changes to the CFA regime requiring primary legislation will follow as soon as Parliamentary time allows. Other changes will require changes to the Civil Procedure Rules or other secondary legislation. Further consultation will follow in due course, as appropriate. It is envisaged that the reforms will be implemented together, once the legislation is enacted, aside from the reversal of Carver v BAA and increases to recoverable fees for litigants in person which can be taken forward independently more swiftly.”
“Thus it was always the Government’s intention to get through Parliament the repeal of those parts of the Access to Justice Act 1999 relating to recoverability of additional liabilities and then place before Parliament Statutory Instruments in relation to the rest, as that is all that is needed, and these will be subject to the negative resolution procedure, that is they are passed unless voted down by either chamber of Parliament within 40 days.”
I am also grateful to Neil Rose for further confirmation on this point. He has spoken to the Ministry of Justice about this and they have said the necessary changes can be done by the rule committee.
I can see this with some of the changes but qualified one-way costs shifting seems a very big change to be done without primary legislation. However, perhaps it just requires CPR 44.3(2) to be reworded:
“If the court decides to make an order about costs –
(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but
(b) the court may make a different order.”