Portal Costs: Court of Appeal rules on the recoverability of disbursements

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21 November, 2019

Aldred v Master Cham (2019) [2019] EWCA Civ 1780 CA

The Court of Appeal has found that the cost of instructing counsel to advise on settlement in a RTA claim involving a child is not recoverable as a disbursement and should be included as part of the fixed costs.

The facts

A motorist who had admitted liability for a road traffic accident in which a child was injured appealed against a County Court decision allowing the child to recover counsel's fee for an advice on the merits of the proposed settlement, in addition to the sum due under the fixed costs regime in CPR Pt 45 IIIA.

The question for the Court of Appeal was whether the counsel's fee for the advice should be a disbursement, which should be allowed (in addition to the fixed recoverable costs) because it was "reasonably incurred due to a particular feature of the dispute" (CPR45.29I(2)(h)).

The decision

The Court concluded that the cost of instructing counsel to advise on settlement in road traffic accident claims involving children (which is a mandatory requirement of the CPR), was not a disbursement "reasonably incurred due to a particular feature of the dispute" within the meaning of r.45.29I(2)(h). The Court resolved that the fact the claimant was a child had nothing to do with the dispute itself and therefore the advice was not necessitated by any particular feature of the dispute.

Forbes comment

We welcome the Court's decision, which brings much needed clarification on this issue. Depending on the issues of the case, fees for counsel's advice will only be recoverable outside of the fixed costs regime if the disbursement is incurred as a result of a particular feature of the dispute. Coulson LJ also commented that "age, linguistic ability and mental wellbeing" are all characteristics of the claimant and not characteristics of the dispute. As way of guidance he remarked:

"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."

However, please note an exception in CPR 45.23. Where the Court orders that a claim is not suitable to be determined under the Stage 3 procedure and the claimant is a child. A claimant may be entitled to obtain an additional advice on the value of the claim pursuant to CPR 45.23B where the value of the claim is for damages more than £10,000 and additional advice from a specialist solicitor or from counsel is reasonably required to value the claim. In such limited circumstances, the claimant may be entitled to an additional amount equivalent to the Stage 3 Type C fixed costs as part of the fixed costs.

For more information contact Sarah Wilkinson in our Insurance department via email or phone on 01254 662831. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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