Philip Aldred v Master Tyreese Sulay Alieu Cham  EWCA Civ 1780
The case concerned the recoverability of the cost of an advice from Counsel obtained in respect to the settlement of an RTA claim where the Claimant was a minor. The claim was subject to the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents. The claim fell out of the Protocol as liability was denied. It was then settled prior to Court proceedings with Part 8 approval proceedings commenced. As a result the costs to be recovered by the Claimant were fixed.
The costs were fixed in accordance with CPR45.29C with the provision as to disbursements set out at CPR45.29I, which states (as far as is relevant to the present matter):
(1) Subject to paragraphs (2A) to (2E), the court:
(a) may allow a claim for a disbursement of a type mentioned in paragraphs (2) or (3); but
(b) will not allow a claim for any other type of disbursement.
(2) In a claim started under the RTA Protocol, the EL/PL Protocol or the Pre-Action Protocol for Resolution of Package Travel Claims, the disbursements referred to in paragraph (1) are:
(h) any other disbursement reasonably incurred due to a particular feature of the dispute.
The Court considered the term “particular feature of the dispute” and decided that the fact that in any case the Claimant was a child or unable to speak English is nothing to do with the dispute itself. Age and linguistic ability are all characteristics of the Claimant regardless of the dispute. They are not generated by or linked in any way to the dispute itself so cannot be said to be a particular feature of that dispute.
In the present case the advice of Counsel was necessitated by the Claimant’s age and not by any particular feature of the dispute. It was therefore not held to fall within the scope of the rule.
The Court went on to consider whether the fee would be recoverable if they were wrong on the feature of the dispute. The Court considered that if the item of work done by Counsel is deemed to be within the fixed costs (profit costs) in Table 6B the fee of Counsel will not be recoverable in addition. It was considered that was the case for the “vast majority of counsel’s fees”. The Court finding that this item of specific work must be deemed as already included within Table 6B and therefore no separate charge could be recovered. The basis for such being it is an item of work that arises in thousands of claims, it is a routine step and so must be deemed included in Table 6B.
The Appeal was allowed with the Counsel fee disallowed.
The case puts to rest the question of whether the advice of Counsel for approval is recoverable in these fixed costs cases. It however, goes much further and will be of great assistance to those routinely handling fixed costs work for Defendants (be that RTA, EL or PL claims).
The case specifically references language difficulties as not being a feature of the dispute. Going forward claims for interpreter fees, which can often be substantial, should be disallowed.
The case further supports the view that routine work that often arises in a claim must be deemed to be provided for in the fixed costs (profit costs) tables. Therefore the frequent use of Counsel in such claims to settle Particulars, advise and so on should be argued as provided for within the Table and thus should not attract an additional disbursement.
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