The Fixed Recoverable Cost Consultation Paper published in 2019 proposed that in claims with multiple claimants “…where the cause of action is the same and the claim itself is either similar or subsidiary to the principle claim… we propose that the [Fixed Recoverable Costs] for each additional claimant should be set at 10% of that for the principal claimant”. At the time of writing we do not know what final form the Rules will take. However, they will need to be worded carefully to avoid injustice where there are multiple claimants who are separately represented, for example where there is contributory negligence.
Separate Representation
At a Judicial Panel hosted by Park Square Barristers on 12 July 2022 I asked how the court would approach multiple claimants who were separately represented. In particular I pointed out that the rule appeared to be predicated on the assumption that subsidiary claimants would benefit from sharing work from the primary claim and in reality additional claimants do not necessarily generate significantly more work. This is clearly not the case where parties are separately represented.
DDJ Rafferty and Recorder Richard Paige both agreed that in these circumstances the sensible approach would be that separately represented claimants would not be limited to 10% of the fixed costs.
Court’s Jurisdiction to remedy injustice
The court’s power to remedy any defect or injustice in the FRC rules may be limited. In Aldred -v- Cham [2019] EWCA Civ 1780 the claimant argued the court should allow a disbursement for an opinion obtained for approval of a settlement on behalf of a protected party under CPR 45.12(2)(c). CPR 45.12 sets out various disbursements the court may allow, and (2)(c) allows the court to award any disbursement incurred as a result of “…a particular feature of the dispute”.
In Aldred the Court of Appeal held that the claimant’s status as a protected party was a feature of the claimant, not a feature of the dispute, and that the court could not therefore allow the disbursement. In effect the court held that in the case of fixed costs the court is bound to applying the letter of the rules, and that deficiencies or injustice is a matter for the Rules Committee.
Conclusion
It will be important for practitioners to carefully consider the wording of the rules once they are published. Solicitors considering representing claimants in situations such as this should be careful to advise of the possibility of a limit on recovery of costs if the rules are unclear. Fixed costs rules are generally interpreted strictly, and lawyers should not assume that injustice may be remedied by appeal.
Matthew Rose is a Solicitor in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com.
