Kerry Underwood

FIXED COSTS AND COUNSEL’S FEES: SUPREME COURT REFUSES LEAVE TO APPEAL

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The matters dealt with in this piece are examined in great detail in my three volume, 1,300 page book Personal Injury Small Claims, Portals and Fixed Costs – price £50 and available from Underwoods Solicitors here.

Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

The Supreme Court has refused permission to the claimant to appeal against the decision of the Court of Appeal which held that counsel’s fees are not recoverable in infant approval cases in the fixed costs system.

The Supreme Court said that “the application does not raise a point of law of general public importance which ought to be considered at this time”.

However, the Supreme Court did suggest that it was appropriate for the Civil Procedure Rule Committee to reconsider the rule preventing the recoverability of counsel’s fees in such cases.

 

In

Aldred v Cham [2019] EWCA Civ 1780

the Court of Appeal held that counsel’s fees, necessary for an approval hearing, fell within the fixed recoverable costs scheme and could not be separately recovered as a disbursement “reasonably incurred due to a particular feature of the dispute”.

At paragraph 3 of the judgment, the Court of Appeal set out the issue:

“3. The issue that arises in the present case concerns the recoverability of the cost of counsel’s advice as to the quantum of the proposed settlement of the RTA claim, in a case where the claimant is a child. The question for this court is whether that is a claim for a disbursement which should be allowed (in addition to the fixed recoverable costs) because, in the words of the relevant rule, it was “reasonably incurred due to a particular feature of the dispute”. That simple question is then said to raise other issues, some arising out of the use of similar wording in other parts of the fixed recoverable costs regime”.

The Court of Appeal, correctly in my view as the Civil Procedure Rules stand, held that the particular characteristics of a claimant did not amount to a “particular feature of the dispute”.

The relevant rule is CPR 45.12 which reads:

“45.12

(1) The court –

(a) may allow a claim for a disbursement of a type mentioned in paragraph (2); but

(b) will not allow a claim for any other type of disbursement.

 

(2) The disbursements referred to in paragraph (1) are –

(a) the cost of obtaining –

(i) medical records;

(ii) a medical report;

(iii) a police report;

(iv) an engineer’s report; or

(v) a search of the records of the Driver Vehicle Licensing Authority;

(b) where they are necessarily incurred by reason of one or more of the claimants being a child or protected party as defined in Part 21 –

(i) fees payable for instructing counsel; or

(ii) court fees payable on an application to the court; or

(c) any other disbursement that has arisen due to a particular feature of the dispute.”

 

The Court of Appeal then said:

 

“21. In this way, r.44.12(2)(b) provides a particular route for the recovery of counsel’s fees, over and above the fixed recoverable costs, “where they are necessarily incurred by reason of one or more of the claimants being a child or protected party”. There is then what has been called a catch-all[2] at r.45.12(2)(c), in respect of “any other disbursement that has arisen due to a particular feature of the dispute.”

Where the claimant is a child, Table 6 of the fixed recoverable costs scheme, applicable when the claim remains within the portal process, expressly provides that the cost of the advice on the amount of damages is included within Type C fixed recoverable costs in the sum of £150. (Paragraph 24).

Disbursements are governed by CPR 45.19 which does not contain a provision in the list of allowable disbursements for the cost of instructing counsel to advise on settlement where the claimant is a child.

 

Here the Court of Appeal said:

 

“That is probably because, as we have seen, the cost of that advice is already included in the fixed costs at Table 6”. (Paragraph 25).

CPR 45.19(2)(e) nevertheless retains the “any other disbursement that has risen due to a particular feature of the dispute” provision.

CPR 45.29 governs ex-portal claims and CPR 45.29I(2)(h) contains a slightly differently worded exception:

“..any other disbursement reasonably incurred due to a particular feature of the dispute”.

The District Judge and, on appeal, the Circuit Judge, both allowed counsel’s fee for the advice on settlement under CPR 45.29I(2)(h).

The Court of Appeal set out in full the relevant provisions of the Civil Procedure Rules but said the issues could be narrowed down to:

  1. Was counsel’s advice “due to a particular feature of the dispute”?
  2. If so, was the cost of the disbursement reasonably incurred so that the court should allow recovery of it in addition to the fixed recoverable costs?

The Court of Appeal said that there was no reported decision on the point but considered two first instance decisions relating to the cost of translators where the issue was whether the fact that a claimant was not an English speaker meant that the fee was as result of “a particular feature of the dispute”.

The two judges at first instance had reached different conclusions.

In

Olesiej v Maple Industries, Liverpool County Court, 4 January 2012

the judge refused to allow recovery, holding that the disbursement arose from a characteristic of the claimant and not out of a particular feature of the dispute.

In

Madej v Maciszyn [2013] Lexis Citation 143

the Senior Courts Costs Office allowed recovery, stating that a claimant’s personal characteristics can amount to a particular feature of the dispute.

The Court of Appeal here held that counsel’s fee was not recoverable:

 

“35. Having considered these careful judgments, I prefer the approach of HHJ Wood QC. The fact that, in a particular case, a claimant is a child, or someone who cannot speak English, or who requires an intermediary, is nothing whatever to do with the dispute itself. Age, linguistic ability and mental wellbeing are all characteristics of the claimant regardless of the dispute. They are not generated by or linked in any way to the dispute itself and cannot therefore be said to be a particular feature of that dispute.

36. The particular features of the dispute in an RTA claim will commonly be matters such as: how the accident happened, whether the defendant was to blame for the accident, the nature, scope and extent of the injuries and their consequences, and other matters of that kind. For example, the particular circumstances of the accident may be sufficiently unusual to require an accident reconstruction expert, or the injuries may be so complex that they require a number of different experts’ reports. Such additional involvement of experts may also require specific advice from counsel. Depending always on the facts, such costs may be said to be a disbursement properly incurred as a result of a particular feature of the dispute.

37. In contrast, the cost of counsel’s advice in the present case was not necessitated by any particular feature of the dispute, and was instead required because it is an almost mandatory requirement in all RTA cases where the claimant is a child. It was therefore caused by a characteristic of the claimant himself and does not fall within the exception.

38. I reach that conclusion based on the plain words of r.45.29I(2)(h). I do not derive any particular assistance in that interpretation from the similar words used in r.45.12(3)(b) and r.45.19(2)(e), in Sections II and III of Part 45 respectively. However, I do consider that my reading of these words, which would limit recoverability of sums over and above the fixed costs to disbursements due to specific features of the dispute which has arisen between the parties, is consistent with the overall purpose of the fixed recoverable costs regime, and in particular its aim of ensuring that, save for express exceptions, the amount recoverable is limited to the sums set out in the tables by way of fixed recoverable costs. I come back to that topic again, in a slightly different context, in the next section of this judgment.

 

The Court of Appeal said:

 

“If an item of work is deemed (or can be said implicitly) to be within the fixed recoverable costs in Table 6B, then it will not be separately recoverable as a disbursement. The brief fee is the most obvious example of that analysis”. (Paragraph 51)

The Court of Appeal also held that it was irrelevant that some parts of the Civil Procedure Rules did provide for an additional fee for counsel in these circumstances.

It said that the figure in Table 6B is higher than in Table 6 and “the comparison cannot prevent the conclusion that, for Table 6B, the cost of a child settlement advice is included in the stated fixed costs.”

Note that the decision to the contrary in

Dover v Finsbury Food Group Plc [2019] EWHC B11 (Costs)

by Master Brown in the Senior Courts Costs Office, given just 15 days earlier than this decision and coming to a contrary conclusion is clearly wrong.

Written by kerryunderwood

May 22, 2020 at 7:55 am

Posted in Uncategorized

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