Can you recover Counsel Fee’s for an Advice on Quantum in a £70,000 case?

Dover v Finsbury Food Group plc [2019] EWHC B11 (Costs)

What a terrible day for the Defendant to cut a long story short. This was an appeal from a Costs Officer’s decision which concerned a costs dispute stemming from an Employers Liability claim which was submitted via a Claims Notification Form “CNF” in 2015. As such the Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims “The Protocol” was to apply.

The Defendant did not respond to the CNF within the prescribed period under the Protocol and as such by automatic operation of 6.13 (2) of the Protocol the matter exited the Protocol. The Claim was later compromised for £70,000 pre-issue, as such Fixed Costs under Section IIIA of CPR 45 were to apply as the matter had not been allocated to the Multi Track.

Within their claim for costs, the Claimant sought a fee for Counsel advising in conference on the value of the Claimant’s claim; the Claimant sought a fee of £650.

The Defendant alleged the fee was not recoverable if the fee had been incurred after the claim had left the Protocol; or in the alternative, if the fee was allowed then it should be limited to £150 plus VAT.

As the matter had exited the Protocol it was agreed between the parties that the applicable section of the CPR which applied to this matter was Section IIIA of CPR 45.

The Rules

“CPR 45.29D

Subject to rules 45.29F, 45.29H and 45.29J, and for as long as the case is not allocated to the multi-track, in a claim started under the EL/PL Protocol  or in a claim to which the Pre-Action Protocol for Resolution of Package Travel Claims applies, the only costs allowed are—

(a) the fixed costs in rule 45.29C;

(b) disbursements in accordance with rule 45.29I.”

“CPR 45.29I

(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 EL/PL Protocol …, the disbursements referred to in paragraph (1) are—

(a) the cost of obtaining medical records and expert medical reports as provided for in the relevant Protocol;

(b) the cost of any non-medical expert reports as provided for in the relevant Protocol;

(c) the cost of any advice from a specialist solicitor or counsel as provided for in the relevant Protocol;

(d) court fees;

(e) any expert’s fee for attending the trial where the court has given permission for the expert to attend;

(f) expenses which a party or witness has reasonably incurred in travelling to and from a hearing or in staying away from home for the purposes of attending a hearing;

(g) a sum not exceeding the amount specified in Practice Direction 45 for any loss of earnings or loss of leave by a party or witness due to attending a hearing or to staying away from home for the purpose of attending a hearing; and,

(h) any other disbursement reasonably incurred due to a particular feature of the dispute.”

Paragraph 7.8 of the Protocol

“In most cases under this protocol, it is expected the claimant’s legal representative will be able to value the claim. In some cases, with a value of more than £10,000, an additional advice from a specialist solicitor or from counsel may be justified where it is reasonably required to value the claim.”

The Defendant sought to rely upon CPR 45.23B, which is in Section III of CPR 45

“CPR 45.23B

Additional advice on the value of the claim:

Where—

(a) the value of the claim for damages is more than £10,000;

(b) an additional advice has been obtained from a specialist solicitor or from counsel;

(c) that advice is reasonably required to value the claim,

the fixed costs may include an additional amount equivalent to the Stage 3 Type C fixed costs.”

For clarity, the Stage 3 Type C fixed costs referred to under CPR 45.23B is £150 plus VAT under Table 6A, this is where the Defendant got their ‘alternative’ provision from.

The Defendant’s Arguments

The Defendant had four arguments in relation to the recoverability of this Counsel fee.

  1. It was the Defendant’s contention that whilst CPR 45.29I applied for the recovery of the disbursements, 2 (c) of that section referred back to the Protocol and as such there was a restriction to the recoverability of the fee only where the fee had been incurred before the matter leaves the Protocol as 7.8 of the Protocol uses the phrase under this protocol; it was the Defendant’s case the matter was not under the Protocol as it had earlier exited the Protocol.
  2. If the recovery of the fee was not restricted as per point 1 above, then no fee was payable given the heading of Table 6A “Where the value of the claim for damages is more than £10,000, but not more than £25,000 which houses the Stage 3 Type C fixed costs referred to in CPR 45.23B. The Defendant contended that as the case settled for more than £25,000 no fee was payable.
  3. If the Defendant were wrong on the above 2 points, the Defendant submitted that there was an error in the drafting of the rules, particularly Table 6A, similar to Qadar and Ors v Esure Limited. That the heading of the table wrongly included an upper limit of damages of £25,000 and so by operation of CPR 45.23B the fee should be limited to £150 plus VAT
  4. Whether on a proper construction of CPR 45.29I (2) (c), CPR 45.29 (2) (h) permitted recovery of the fee.

The Decision

Master Brown did not agree with the Defendant on any of the above points.

  1. Master Brown was of the opinion that the Defendant’s reading of the rules on this argument was strained. As if the Defendant were to be correct then it would produce an anomaly to the other rules such CPR 45.29I (2) (a) and (b) which deal with the recoverability of medical evidence, the wording of these rules also contain the phrase in the relevant Protocol. Further the Master considered the legislative history and the intention to ring-fence the cost of obtaining an advice on quantum so as to ensure claims are not under-settled.
  2. Master Brown found that CPR 45.23B and Table 6A did not apply to claims which had exited the Protocol and if it were intended then CPR 45.29I (2) (c) would have included the limitation contained under Section III and it would have been included under Section IIIA.
  3. In relation to the drafting error argument of the Defendant, Master Brown found that as Table 6A did not apply to this claim he did not need to consider this argument. However there is an interesting comment from Master Brown at paragraph 49:

“I accept that in cases which have a value of less than £25,000 a judge might reasonably have regard to the sums provided for under CPR 45.23B even in cases which exit the protocol. However, in cases which exit the protocols on the grounds that the value exceeds £25,000 (see [39] of Qader on this point), it is difficult to see, given the likely added complexity associated with them that it must have been intended that costs of any independent advice required would be so limited.”

  • It was found that the fee was not covered by CPR 45.29I (2) (h) as this referred to any other disbursement, however the fee was already covered by CPR 45.29I (2) (c).

The Master therefore dismissed the Defendant’s appeal and allowed the Counsel fee at £500 plus VAT as per the original decision from the Costs Officer, as the fee was recoverable subject to reasonableness.

Comment

To me this seems a very logical decision, Section IIIA of CPR 45 applies to claims which have left the Protocol and CPR 45.29I (2) (h) allows recovery of Counsel’s fee for advice so long as it is provided for in the Protocol, which it is. I have regularly conducted Fixed Recoverable Costs Proceedings which involve Counsel’s fees for an Advice on quantum and recovered them.  

The comment made by Master Brown at paragraph 49, detailed above, has also provided food for thought. As it appears that he feels that if a case has a value of less than £25,000, the cost of obtaining an advice from Counsel should be limited to £150 plus VAT even if the matter has left the portal.

This blog was written by Matthew Waring who is an Associate in the Costs and Litigation Funding Team at Clarion. Matthew can be contacted on 0113 288 5639 or at Matthew.Waring@clarionsolicitors.com

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