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Symes v Ramos, Taunton County Court, 15 December 2011

6 January 2012
The issues

Infant approval settlement – predictive costs – recoverability of counsel’s fee for attendance at the hearing

The facts

The claimant who was aged 14 at the time of the accident was involved in a collision when travelling as a passenger in the defendant’s vehicle. There was conflicting evidence as to whether the claimant was wearing a seatbelt and damages were agreed between the parties for £8,925.

The claimant’s solicitors issued Part 8 proceedings so that the settlement could be approved.

A dispute arose regarding the disbursements claimed by the claimant’s solicitors and in particular the recoverability of counsel’s fee for attending the approval hearing which had been claimed at £480.00.

The matter was heard by District Judge White of Taunton County Court. The court held that the recoverability of counsel’s fee for attending the approval depended on whether the disbursement was ‘necessarily incurred’ pursuant to CPR Part 45.10.

The claimant’s counsel submitted that his attendance was ‘necessarily incurred’ due to two reasons. Firstly, the complexity of the medical evidence as the claimant’s solicitors had obtained three medical reports (Orthopaedic, Neurology and Thoracic).

Secondly, the claimant’s litigation friend had agreed to waive her claim for gratuitous care. Counsel stated that the defendant had proposed a 15% reduction for contributory negligence (based on the failure to wear a seat belt) and in his view some courts would not be pleased with a contributory negligence deduction in an infant approval. To resolve this issue the litigation friend had agreed to waive her claim for gratuitous care which would bring the damages figure down to the one offered by the defendant. Therefore counsel stated that the matter was complicated due to this waiver and his attendance was necessary.

The defendant submitted that it was not necessary for counsel to attend the approval as although this matter was very distressing and unpleasant for the claimant, in terms of the personal injury claim it was a ‘run-of-the-mill’ case and therefore counsel’s attendance was not necessary. In addition, the claimant’s solicitor was a grade A fee earner and it was questioned what additional assistance counsel may have been able to offer the court that the claimant’s solicitor could not. The defendant submitted that counsel’s fee should not be recoverable and the claimant’s solicitor or an agent solicitor should have attended, the costs of which should be taken from within the predictive costs regime and no additional disbursement should be allowed. The defendant referred to a number of similar county court cases including the decision of Sherred v Carpenter (Taunton County Court, 5 March 2009).

The decision

DJ White held that the test for recoverability is whether the attendance was ‘necessary’. He stated that this case was approximately £10,000. It wasn’t small but wasn’t exactly large. He stated that it would not be right to say that the complications arising from the injuries would cause difficulties at the hearing. In his mind the evidence did not reveal any issues that would need clarification.

DJ White stated that HHJ O’Malley’s judgment (Sherred v Carpenter) involved a case of a similar sort to the case in issue and in his mind there were two points to consider; (1) the issue of contributory negligence and stated that any judge is likely to take a pragmatic view to this and therefore did not feel that it would cause undue complications, and (2) the waiver by the litigation friend of care. He stated that these funds would have to be held in trust for the litigation friend if awarded and just because the litigation friend decides to waive these costs does not mean that the court would not approve the settlement.

DJ White stated that this was a case where the claimant could have reasonably been able to obtain any legal advice and counsel’s attendance fee was not necessarily incurred [in this case]. DJ White disallowed this disbursement.

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