Counsel’s fees for an opinion on quantum in a road traffic accident (RTA) involving a child that falls out of the portal are included in the fixed costs and cannot be recovered as a disbursement, the Court of Appeal has ruled.
Lord Justice Coulson said the fact the claimant was a child was not “a particular feature of the dispute” because it was a personal characteristic which had “nothing whatever to do with the dispute itself”.
Aldred v Cham [2019] EWCA Civ 1780 concerned CPR 45.29I(2)(h), which allows additional claims for disbursements beyond the fixed fee to be claimed in cases where they are “reasonably incurred due to a particular feature of the dispute”.
Defendant Philip Aldred initially denied liability for the crash that injured seven-year-old Tyreese Cham, meaning the case dropped out of the portal and the costs rules in section IIIA of CPR part 45 applied. He eventually accepted liability and offered £2,000 to settle the case. An opinion on the size of the offer was required under part 21 – as this was not a “very clear” case – and counsel recommended accepting the offer, charging £150 for the advice.
The court approved the settlement, but Mr Aldred argued that the £150 went beyond the fixed costs regime set out in section IIIA. District Judge Hale ruled that it was recoverable in addition to the fixed costs because the claimant was a child and this was a “particular feature” of the dispute. Mr Aldred appealed, but HHJ Owen QC, sitting at Nottingham County Court, upheld the decision.
Coulson LJ said the cost of counsel’s opinion on quantum did not arise from any particular feature of the dispute, but was an “almost mandatory” requirement in all RTA cases where the claimant was a child.
“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.
“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.”
By contrast, Coulson LJ said, the cost of counsel’s advice was not necessitated by any particular feature of the dispute, but by the fact the claimant was a child. “It was therefore caused by a characteristic of the claimant himself and does not fall within the exception.”
He added that, even if he was wrong on this, the fee for the advice was not recoverable under rule 45.29I(2)(h).
“Taking section IIIA in the round, I consider that any fee for that advice must be deemed to be included within the fixed recoverable costs in Table 6B.”
Coulson LJ said his interpretation of CPR 45.29I(2)(h), was “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”.
He also agreed with the decision of HHJ Graham Wood QC in 2012, in which he similarly disallowed the services of a translator as an additional disbursement.
Lady Justice Nicola Davies and Lord Justice McCombe agreed, although they dissented on whether a “trawl” through various sections of part 45 of the CPR was helpful, arguing that it was.
Matthew Hoe, director of dispute resolution at Taylor Rose TTKW, which acted for Mr Aldred, said: “We felt we had to pursue this appeal because the principle that fixed costs covers the work of all lawyers wasn’t being accepted in the county court. This judgment ends all that.
“Disbursement disputes are unlikely to hold up fixed costs settlements now. This was a case about counsel’s fees for the appellant. The respondent raised the point about translation fees and we are grateful that the court has taken the opportunity to resolve that too.
“Clarity and predictability are the most valuable outcomes, whichever way these judgments go.
“We appreciate that the judgment may dismay claimants about the financial viability of some low-value personal injury claims. Stakeholder consultation led to the creation of section IIIA and, looking back, additional provision for children or language issues wasn’t sought.
“It may be cold comfort for claimants now that future fixed costs regimes may ring fence counsel’s fees and provide for translation fees, whether done in-house or outsourced, following the government consultation earlier this year.”
Roger Mallalieu (instructed by Taylor Rose TTKW) for the appellant, and Andrew Granville Stafford (instructed by Total Legal Solutions, True Personal Injury Solicitors) for the respondent.