In a recent case regarding the proposed settlement of a Minor RTA claim, costs for counsel’s advice were disputed. It was held that Counsel fees were not recoverable in addition to fixed costs because, the fact that the Respondent was a child, was not “reasonably incurred due to a particular feature of the dispute”, but instead, it was a “characteristic of the claimant”. Lord Justice Coulson stated;
“Age, linguistic ability and mental wellbeing are all characteristics of the claimant regardless of the dispute. They are not generated by or linked in any way to the dispute itself and cannot therefore be said to be a particular feature of that dispute”.
The CPR and Counsel Fees as a Disbursement
At the Court of Appeal, Lord Justices McCombe and Coulson and Lady Justice Nicola Davies considered whether the claim for the costs for counsel’s advice was a claim for a disbursement which should be granted in addition to the fixed recoverable costs. The argument for this disbursement was that it was “reasonably incurred due to a particular feature of the dispute,” provided for under CPR 45.29C and Table 6B.
Facts of the Case
The respondent was a minor (aged 7) who was involved in an RTA with the Appellant. Initially, liability was denied for the claim which meant that it exited the RTA Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents. When liability was later accepted, an offer for £2,000 in full and final settlement for the claim was made. Counsel’s advice on the offer was obtained as required by CPR 21.10(1) as the respondent was a child.
The offer of £2,000 was then accepted as recommended by Counsel in their written advice and CPR Part 8 proceedings were issued for the Court’s approval. A claim for costs was made in accordance with CPR 45 IIIA which included a claim for counsel’s advice fees as a disbursement.
The claim for the counsel fees was allowed as a disbursement by District Judge Hale and this was upheld by HHJ Owen QC sitting at Nottingham County Court on appeal. They agreed that the advice was required by CPR 21, the disbursement was “reasonably incurred due to a particular feature of the dispute.”
The Court of Appeal’s Approach to Counsel Fees as a Disbursement
At the Court of Appeal, Coulson LJ considered the decisions in Olesiej v Maple Industries and Madej v Macizyn  to consider whether Counsel’s advice was “a particular feature of the dispute.” These were both cases involving non-English speaking Claimants where Judges considered whether a translator fee could be regarded as “a particular feature of the dispute” . The view in Madej was that the claimant’s lack of English was a feature of the dispute and the disbursement was allowed. A different view was taken in Olesiej, and the recovery of the disbursement was refused as it was considered that the Claimant’s lack of English was a particular feature of the claimant, and not the dispute.
Coulson LJ took the same approach in Aldred as the Judge in Olesiej and held that the counsel fees were not recoverable as a disbursement under CPR 45.29I(2)(h) as the fact that the Respondent was a child, was not a particular feature of the RTA dispute between the Respondent and Appellant.
What does this Judgement mean for the Future Recovery of Disbursements in Fixed Cost Cases?
The Judge does not allow counsel fees to be recovered in this case, as the age of the claimant is only a feature of the claimant, and not a feature of the dispute. LJ Coulson also referred to the linguistic ability of the client and described them as a “characteristic of the claimant.” In theory, this may mean that translation fees and any other fees relating to a feature of the claimant are not recoverable. Although the comments of Coulson LJ are obiter, there is a possibility that non-English speakers would be disadvantaged in the legal system and, therefore, we need to question if this could be a breach of the Human Rights Act.
On a positive note, the case justifies recovery of counsel fees if the advice relates to a particular feature of the dispute, for example, cases which involve contributory negligence or complex medical evidence.
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