Aldred v Cham

Factual and Procedural Background

On 5 September 2015, the respondent, a child aged seven, was injured in a road traffic accident caused by the appellant. The respondent commenced a claim on 18 April 2016 under the Road Traffic Accident Pre-Action Protocol ("the PAP"). The appellant initially denied liability on 10 May 2016, causing the claim to fall out of the PAP and invoke the fixed costs regime under Section IIIA of CPR Part 45. The appellant later accepted liability on 22 June 2016 and offered £2,000 in full and final settlement on 11 August 2016.

The respondent's solicitors sought counsel's advice on the amount of the settlement offer, as required by CPR Part 21 for claims involving children. Counsel advised acceptance of the offer on 6 September 2016, with a fee of £150. The respondent accepted the offer on 20 October 2016 and initiated Part 8 proceedings to obtain court approval of the settlement, which was granted on 2 July 2017 by District Judge Elmer, who ordered the appellant to pay the respondent's costs.

The respondent served a bill of costs on 27 July 2017, including the counsel's advice fee. The appellant objected on 17 August 2017, contending that the counsel's fee was outside the fixed costs regime under CPR 45 Section IIIA. Following a provisional assessment by District Judge Hale, who allowed the fee as a disbursement in addition to fixed costs, the appellant sought an oral assessment. District Judge Hale confirmed the fee's recoverability on 10 August 2018.

The appellant appealed to HHJ Owen QC, who on 21 December 2018 upheld the decision allowing recovery of counsel's fee as a disbursement under the catch-all provision of the fixed costs rules. Permission to appeal to this court was granted due to the wide applicability of the issue.

Legal Issues Presented

1. Whether counsel's advice fee was "due to a particular feature of the dispute" within the meaning of the fixed costs regime.
2. If so, whether the cost of that advice was a disbursement reasonably incurred and recoverable in addition to fixed recoverable costs.

Arguments of the Parties

Appellant's Arguments

• The exceptions for disbursements under r.45.29I should be narrowly construed to preserve the integrity of the fixed recoverable costs regime.
• The catch-all provision at r.45.29I(2)(h) was intended for limited scope exceptions and did not encompass counsel's advice fees in child claimant cases.
• Reference to Dockerill v Tullett showed no contention that counsel's fee was recoverable under such a provision in a child claimant case.
• Advice required for child claimants can be provided by solicitor or counsel; if by solicitor, it is not a disbursement and thus counsel's fees should not be recoverable additionally.
• Allowing recovery of counsel's fees as a disbursement would encourage solicitors to avoid doing relevant work themselves to claim additional fees.
• The fixed costs tables (Table 6B) implicitly include the cost of counsel's advice for child claimants, making separate recovery inappropriate.

Respondent's Arguments

• Counsel's advice was required by the CPR and Practice Direction 21, and its cost was not expressly included in the fixed costs under Section IIIA.
• Therefore, the counsel's fee must be recoverable as a disbursement under the catch-all provision r.45.29I(2)(h) to avoid an anomaly.
• It would be inequitable if the fixed costs regime precluded recovery of a mandatory cost under the rules for child claimants.

Table of Precedents Cited

Court's Reasoning and Analysis

The court commenced by examining whether counsel's advice fee could be considered "due to a particular feature of the dispute" under the fixed costs regime. It reviewed two conflicting first instance decisions on analogous issues involving interpreter fees, ultimately preferring the judgment that claimant characteristics such as age or language ability are not features of the dispute itself but inherent claimant attributes. The court reasoned that particular features of a dispute relate to substantive issues in the claim, such as the circumstances of the accident or complexity of injuries, rather than personal characteristics of the claimant.

Accordingly, the court found that the fact the claimant was a child did not constitute a particular feature of the dispute, and thus counsel's advice fee did not fall within the exception allowing additional disbursements.

Turning to the second issue, the court considered whether, even if the claimant's age were a particular feature of the dispute, the fee would be recoverable. It analysed the fixed costs regime under Section IIIA, noting that the fixed recoverable costs in Table 6B are comprehensive and based on case value and timing, implicitly covering routine steps such as obtaining counsel's advice in child claimant cases.

The court emphasized the practical necessity of a workable fixed costs regime, which cannot itemize every possible cost but assumes inclusion of routine work within fixed sums. It found that counsel's fees are disbursements by definition but are only recoverable in addition to fixed costs if they relate to exceptions expressly or implicitly outside the fixed costs.

The court rejected the respondent's argument that absence of explicit reference to counsel's advice in Section IIIA meant it must be recoverable separately, reasoning that the fixed costs figures must be taken to include such routine costs. It also considered the risk of inconsistent interpretations across different sections of the CPR and stressed the importance of reading the fixed costs regime as a coherent whole.

In conclusion, the court held that the counsel's advice fee was not recoverable as an additional disbursement under the fixed costs regime.

Holding and Implications

The court ALLOWED THE APPEAL, ruling that counsel's fee for advice on settlement in a child claimant RTA case is not recoverable in addition to fixed recoverable costs under CPR Part 45 Section IIIA.

The direct effect of this decision is that respondents in similar cases cannot claim counsel's advice fees as extra disbursements beyond the fixed costs specified in Table 6B. The ruling clarifies the interpretation of the "particular feature of the dispute" exception, limiting it to substantive features of the dispute rather than claimant characteristics. No new precedent beyond the application of existing fixed costs principles was established.