The Court of Appeal ruled on whether counsel’s quantum advice for an infant settlement was a disbursement for the purposes of 45.29H.
Full judgment, dated 25 October 2019
The Court of Appeal held that where a personal injury claim that fell outside of the low-value RTA protocol concerned a child, counsel’s fee for advising on quantum for the purposes of approval of a subsequent settlement (though mandated by the CPR) was not a disbursement that was reasonably incurred and was therefore not recoverable.
This case was an RTA in which the Claimant was a child. It began, as is mandatory, in the pre-action protocol portal. The claim left the portal owing to the Defendant’s denial of liability. However, following negotiations, the Defendant admitted liability and the claim was settled for the princely sum of £2,000. The Claimant’s solicitors quite properly (and, indeed, as they were mandated to do by Practice Direction 21 para 6.4) instructed counsel to provide an advice on whether the settlement was acceptable. Counsel billed the fee of £150 (reflecting the fixed sum recoverable for such an advice in portal cases). The judge approving the settlement (on the strength of counsel’s advice) ordered the Defendant to pay the Claimant’s costs, to be assessed if not agreed.
When the bill of costs was served, the Defendant objected to the fee for the advice. On the papers, another district judge allowed the fee. At oral assessment he maintained that view. The Defendant then appealed to a circuit judge.
The circuit judge agreed with the district judge. He did so for the express reason that counsel’s fee for advising on quantum was not provided for within the fixed recoverable costs allowed under Table 6B of part IIIA of part 45. He ruled that the fact that the claimant was a child constituted “a particular feature of the dispute”.
The matter was then appealed to the Court of Appeal. The court, in its judgment, conducted what it referred to as a “trawl” of the relevant parts of the CPR, beginning at paragraph 16. The focus started with rules 45.10 to 45.12, highlighting particularly rule 44.12(2)(b), which provides for recovery of counsel’s fees over and above the fixed recoverable costs where one or more of the claimants is a child or protected party.
Those sections, though, are in Part II (now of little relevance). In section III the judges focussed on paragraphs 45.17 to 45.19, including Table 6. The court noted that although 45.19(2)(e) contained a catch-all provision for disbursements that is exactly the same as 45.12(2)(c), there was no specific provision for counsel’s fees in a child or protected party case. They explained that, obviously enough, by reference to the cost for the same already having been factored into rule 45.18(2), which allows recovery of the “Type C” costs of £150 for advising on quantum in a child claim (presumably where the figure of £150 came from in the instant case).
Then, at paragraph 26, the court moved onto section IIIA. Chief among the notable sections referred to there was section 45.29I(2)(h), which, though not identical to the two previous “catch-all” provisions, is nearly so. Though the court did not say so at this point in the judgment, the absence of a provision similar to 44.12(2)(b) or 45.18(2) providing for recovery of counsel’s fee in child cases is notable.
The court then, from paragraph 32 onwards, analysed whether counsel’s fee for the quantum advice was reasonably incurred because of a particular feature of the dispute, for the purposes of CPR 45.29I(2)(h).
The absence of authority on this question is starkly evident – the court reviewed two unreported authorities, one from HHJ Graham Wood QC in Liverpool and another from Master Campbell in the senior courts office, each on the question of the costs of an interpreter for a claimant with little English.
Surprisingly, the court preferred the HHJ Wood’s approach on the basis that whether or not one of the litigants was a child, or spoke no English “is nothing whatever to do with the dispute itself…They are not generated by or linked in any way to the dispute itself and therefore cannot be said to be a particular feature of the dispute.” Accordingly, counsel’s advice could not be recovered.
The court then went on to address the broader arguments on recoverability “in deference to the detailed submissions that we have heard” even though it had already determined the appeal. The most obvious point to most casual observers is referenced at paragraph 43, namely the inequity of the rules requiring an advice on quantum but then refusing to allow it to be recovered. At paragraph 46, the court confirmed that it did consider counsel’s fee “a disbursement” for the purposes of the rules.
The court went on, however, to state that they must be bound up within the fixed recoverable costs in 6B unless there was a “particular feature of the dispute” (which, per earlier in the judgment, is interpreted extremely narrowly) (paras 51-53).
Finally, the court took the view that the absence of a specific provision for child or protected party fees akin to those in parts II and III supported the conclusion that they were simply bound up in the fixed recoverable costs.
This would appear to be, at least temporarily, a death knell for counsel preparing infant quantum advices. If they prepare one and the case settles they will not be paid. If they prepare one and the case goes to trial, they will still only be paid the same as if they had not prepared the advice. The only way out would be if the solicitors agree to pay counsel