Dover v Finsbury Food Group plc  EWHC B11 (Costs)
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.
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
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.
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.
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
(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.”
Defendant sought to rely upon CPR 45.23B, which is in Section III of CPR 45
Additional advice on the value of
(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.”
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’
The Defendant’s Arguments
Defendant had four arguments in relation to the recoverability of this Counsel fee.
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.
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.
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
on a proper construction of CPR 45.29I (2) (c), CPR 45.29 (2) (h) permitted
recovery of the fee.
Brown did not agree with the Defendant on any of the above points.
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
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.
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
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  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).
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.
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