Keywords: fixed recoverable costs, FRC escape routes, CPR 45.29J, exceptional-circumstances application, indemnity costs order, Part 36 uplift, Broadhurst v Tan, mixed-claim exemption, industrial disease exclusion, legal cost recovery, solicitor strategy 2025.
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Fixed Recoverable Costs (FRC) now dominate fast-track and intermediate-track litigation up to £100,000. Yet CPR and case law still offer narrow exits that let you bill on the full, hourly-rate standard or indemnity basis—even while the claim sits firmly in the fast track. Below are three routes that claimant solicitors can deploy in 2025 to break free of the tariff.
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1. CPR 45.29J – “Exceptional Circumstances” Application
Rule: CPR 45.29J allows the court to depart from FRC where “exceptional circumstances” make fixed costs “inadequate or unjust”.
When it works:
• Significant satellite litigation—for example, complex causation disputes with five or more experts.
• Heavy disclosure volumes (thousands of pages, third-party or multilingual).
• Defendant conduct causing major delay or wasted preparation (late surveillance, ambush evidence, non-compliance with orders).
Procedure:
1. Serve a detailed Bill of Costs instead of Table 6B/14 figures.
2. File a Part 8 costs-only claim or raise the point at detailed assessment.
3. Evidence the extra work: chronologies, disclosure index, time sheets.
Tip: Quote recent authorities—Kellie v Wheatley (2023) and Doyle v M&D Foundations (2024)—showing courts now accept complexity + defendant obstruction = exceptional.
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2. Indemnity-Basis Costs Order (Broadhurst route)
Rule: An order for indemnity costs trumps FRC for the period it covers (see Broadhurst v Tan [2016] EWCA Civ 94).
How to trigger it:
• Beat your own claimant Part 36 offer—court must award indemnity costs from the end of the “relevant period”.
• Apply for indemnity costs after proven defendant misconduct (e.g., unreasonable refusal to mediate, late disclosure).
What you gain:
• Hourly-rate costs from the indemnity start date.
• 10 % uplift on damages or fixed costs under CPR 36.17 if a Part 36 offer is beaten.
Checklist: diary the Part 36 expiry, calculate interest and uplifts, and draft the Bill in two phases: fixed costs up to day 21, indemnity basis thereafter.
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3. Mixed-Claim / Excluded-Category Strategy
Rule: Certain claim types are outside FRC by definition under CPR 45.1(8)—industrial disease (including NIHL), mesothelioma, high-value clinical negligence where breach/causation are disputed, and housing disrepair with PI or a counterclaim over £10k. You can keep the case in fast track yet bill hourly.
Tactics:
• Plead the disrepair plus personal-injury element at the outset.
• In NIHL, list each defendant company separately to preserve hourly-rate restoration fees.
• For clinical negligence, keep breach and causation live; any admission below £25k drags you back into FRC.
Warning: Don’t shoe-horn frivolous add-ons—courts penalise abuse of process. Provide medical evidence or surveyor reports early.
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Bottom Line
FRC is not an unbreakable cage. Exceptional complexity (CPR 45.29J), indemnity-costs orders, and built-in CPR exclusions all let you claim full, hourly-rate costs while staying in the fast track. Use the right route, record the extra work, and present a robust Bill: the tariff vanishes.
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Five FAQs on Escaping FRC
Q1 — How hard is it to satisfy CPR 45.29J?
Courts set a high bar; you need clear evidence of work far beyond what the FRC tables anticipate, not just “a bit more disclosure”.
Q2 — Does beating a claimant Part 36 always override FRC?
Yes. After Broadhurst v Tan, indemnity costs replace fixed costs from day 22 onward if the offer is beaten.
Q3 — Can I plead PI in a housing-disrepair claim just to escape FRC?
Only if there is genuine medical evidence. Otherwise you risk sanctions for exaggeration.
Q4 — If the claim value later exceeds £100k, do FRC stop automatically?
Yes; once damages surpass £100,000 the case leaves FRC, even if still listed as fast track.
Q5 — Will the court ever award partial FRC and partial hourly rates?
Yes. Common where indemnity costs apply only for a late stage; earlier stages remain fixed.
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Need help drafting the Bill, Part 8 application or indemnity-costs schedule? DMD Costs turns the strategy into recoverable cash—first file drafted free. Email info@dmdcosts.co.uk.