Kerry Underwood

ADVOCACY FEES AND FIXED COSTS: A PUZZLE

with 2 comments


All of these matters are dealt with in my new book – Personal Injury Small Claims, Portals and Fixed Costs, running to three volumes and 1,300 pages and costing £80.00 and available from me here or Amazon here.

You can now book onto my Fixed Costs Autumn Tour and there is an early bird discount if booked and paid for by 31 July 2017 – here

Here I look at the position where a Defendant is successful at trial on a counter- claim, where the original claim is a personal injury case within the Fixed Recoverable Costs Scheme.

CPR 45.29G governs the position in relation to Defendants bringing a counterclaim.

If the Defendant succeeds as counterclaimant, then the fee is based on that successful claim.

If the counterclaim is for something other than personal injuries, but is in response to a claim for personal injury, then the order for costs on the counterclaim shall be for a sum equivalent to one half of the applicable type A and type B costs in table 6.

What is the advocacy fee where the counterclaim is successful, but does not include a claim for personal injuries?

By CPR 45.29G(c) if the court makes an order for the costs of the counter-claim then rules 45.29B, 45.29C, 45.29I, 45.29J, 45.29K and 45.29L shall apply.

CPR 45.29C fixes costs.

What is not clear is whether CPR 45.29G(2)(a) limits the total costs payable to the successful counter-claimant to half of the applicable type A and type B costs in table 6, meaning that there will be no advocacy fee at all, or whether it restricts those aspects of the costs to half of the type A and type B costs, but allows full advocacy costs.

A third interpretation is that as the counter-claim is not for personal injury then the advocacy fee is determined by CPR 45.37 which has its own fixed Fast Track trial costs for all Fast Track cases not covered by CPR 45.29.

Thus, if the defendant counterclaims for personal injury and succeeds, then that Defendant is treated as a successful claimant for the purposes of fixed costs and the advocacy fee is based on the amount awarded to the counterclaimant.

The area of uncertainty is if the counterclaim does not include a claim for personal injury.

Any case allocated to the Multi-Track ceases to be subject to fixed costs, following the decision in Qader & Others v Esure Services Ltd [2016] EWCA Civ 1109 and now enshrined in rule 8(1) of the Civil Procedure (Amendment) Rules 2017.

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Written by kerryunderwood

July 26, 2017 at 10:01 am

Posted in Uncategorized

2 Responses

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  1. Hello Kerry
    Would like a informal chat with you to get your opinion on some paper work
    I have just received
    From DLG legal services

    lifeescapepro

    July 26, 2017 at 10:07 am


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