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Fixed Costs, with Counsels fees? Don’t be afraid any more!

In the recent High Court Appeal case of Dover -v- Finsbury Food Group, it was found that relevant provisions permitted recovery of counsel’s fee for advising in conference as a disbursement, thus escaping the limited fee of £150.00 plus VAT in accordance with CPR 45. 23B.

The Appeal came from a claim which started under the Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims (‘the EL/PL protocol’) but which settled after exiting the protocol. And the issue rose when the circumstance came about to suggest that Counsel’s fees should be recoverable as a disbursement under the provisions of Section IIIA in CPR 45, whereby the fees are limited to £150.00 plus VAT.

Background;

In the initial claim, the Claimant sustained injury in the course of his employment at work when pouring a 25 kg bag of flour into a machine in a bread mixing room. Without going into gruesome detail, as a result of the accident, the Claimant suffered injuries to his right hand.

A Claims Notification Form (CNF) was prepared and uploaded to the portal in July 2015. Due to no response, the claim exited the portal, thus opening costs to Fixed Costs.

Whilst liability was partially admitted in 2016, this was all subject to medical causation. In light of the circumstances, Counsel was instructed to advise on the claim in a conference, incurring a fee of £650.00 plus VAT.

Following the agreement in damages, the Defendant went on to dispute any entitlement to payment of Counsel’s fee on the basis that the relevant provisions in a claim which exited the EL/PL protocol if incurred after the claim has left the protocol; the costs were deemed to be included within the fixed fees. In the alternative, it was suggested that if Counsel’s fee was recoverable, then it should only be at the costs of £150.00 plus VAT.

Dispute Rejected!

Master Brown did not agree with the Defendant’s argument and held that, relevant  provisions permitted recovery of Counsel’s fee for advising in conference as a disbursement.

On the face of things, the general provisions in Section IIIA of Part 45 of the CPR 45.29I, would apply, HOWEVER, in such circumstance it can be found that the Defendant’s robust augments, hinders what can and cannot be recovered.

If reviewed carefully, under the CPR 45.29I headed disbursements, point (2)(c) and (h) sets out the following;

(2) In a claim started under …. the EL/PL Protocol …, the disbursements referred to in paragraph 1. are—

…….

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

…..

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

The relevant protocol, being the El/PL protocol, states at paragraph 7.8:

“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.”

What does this mean for me?

45.29I and the EL/PL Protocol require a claimant to justify the advice as being “reasonably required”, not exceptional. Thus if you can argue the reasonableness of this, the fee can and should be justified ultimately allowing the same, at best in full, or at worst in excess of the capped amount of £150.00 plus VAT.

In these circumstances, whilst £650.00 VAT was not allowed, a sum of £500.00 plus VAT was awarded as a reasonable sum for Counsel’s fee.

If you are in any doubt then contact your costs specialist prior to compromising the claim where they will be able to assist and guide you on to the provisions to incorporate and rely upon to support the recoverability of Counsels’ fees in a fixed costs matter.

If you have any queries arising from this discussion, then please do not hesitate to contact our specialists at PIC who can provide practical assistance.

Helena Nkansah  | Legal Costs Negotiator | Partners In Costs Ltd
Tel: 01302 244422 | Fax: 0345 872 7674 | Email: Helena.Nkansah@pic.legal

Dated: 28.11.2019