A Minor Issue (Article published in APIL Magazine)

Published in the April edition of The APIL magazine

You may be aware of the recent Court of Appeal case of Aldred v Master Tyreese Sulay Alieu Cham [2019] EWCA Civ 1780 and its unfavourable result for Claimants.

Briefly, the case concerned the recoverability of the costs of an advice from Counsel obtained in an RTA case requiring approval, as the Claimant was a minor.  The Claim was initiated by way of CNF as it was subject to the Pre Action Protocol for Low Value Personal Injury claims in Road Traffic Accidents.  The Claim fell out of the Portal as liability was denied. The matter settled prior to Proceedings being issued and thus Part 8 Approval Proceedings were commenced.  Costs were claimed In accordance with CPR 45.29:

(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 held that the fact the Claimant was a child was not a “particular feature of the dispute”, age and linguistics were characteristics of the Claimant not of the dispute and thus Counsels fees for the damages approval were disallowed.

This is a dreadful decision for Claimant’s in the specific cases in which this apply, namely those cases in which Counsels advice is obtained simply to comply with CPR 21.  It does not however render all Counsels fees within a minor portal claim automatically unrecoverable. In my experience, paying parties are incorrectly applying the decision when facts of each individual case need to be considered. It was held at paragraph 6 in Aldred v Cham:

“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.”

Express recently ran this point at county court level successfully. The paying party refused to pay any of Counsels fees in a minor Fixed Cost Case relying on Aldred.  The Claimant argued that the Counsels fees were incurred as a result of a particular feature of the dispute, namely that it was a multi-track case, involving serious burns to a Minor.  Damages were agreed  in excess of £35,000.00 and as the Claimant’s injuries were so complex it was necessary to obtain evidence in multiple fields including Plastic Surgery, Psychology and Skin Camouflage. The Claimant conceded that Fixed Recoverable costs would apply as the case had been incorrectly submitted to the portal by Previous Solicitors, but argued Exceptional Circumstances and that Aldred could be distinguished.

Express were successful and It was held that it was reasonable for Counsel to be consulted to assess, particularly as there were claims for future losses based on this evidence.   Whilst the cost of the final approval advice was disallowed in line with Aldred, the cost of 2 previous conferences with Counsel were allowed (totalling £1,320.00)  as it was submitted that counsel’s input was provided not simply to comply with PD 21.5.2 but rather it was necessary to give guidance on the complex features of the dispute.

In summary, although the unwelcomed decision will render a large majority of Counsels fees in minor portal cases unrecoverable, when assessing recoverability of such fess  consider why the fee was incurred in the first instance. Consider the nature, scope and extent of the minor’s injuries as this could give rise to good argument for recoverability and thus save costs.

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