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Dockerill & Healy v Tullett; Macefield v Bakos; Tubridy v Sarwar, Court of Appeal, 24 February 2012

2 March 2012
The issues

O’Beirne v Hudson – infant settlement – costs – small claim – what costs are appropriate – fixed costs – CPR 45(ii) – whether counsel’s fees are necessary incurred

The facts

Three cases came before the Court of Appeal in respect of costs issues in relation to personal injury claims bought by minors. In Dockerill & Healy v Tullett and Macefield v Bakos the issue was whether costs were to be calculated in accordance with the fixed costs regime under CPR 45 Part (II) or whether they should be subject to detailed assessment in accordance with CPR 44.5. If the latter, then how should such an assessment be carried out where, as in both cases, the claim for damages had been settled at less than £1,000.

In the third case, Tubridy v Sarwar, the issue was whether the fee’s of counsel for attending the approval application were properly recoverable as a disbursement under CPR 45.10(2)(c).

Issue 1 – were costs to be assessed in accordance with the fixed costs regime?
CPR 45.7(2) reads: “this section applies where – (a) a dispute arises from a RTA; (b) the agreed damages include damages in respect of PI, damaged property or both; (c) the total value of the agreed damages does not exceed £10,000 or more (d) if a claim had been issued for the amount of the agreed damages, the small claims track would not have been the normal track for that claim”.

For counsels fee’s to be recoverable in this circumstances there had to be some complexity which justified them being instructed to appear on the approval hearing

The District Judge in Dockerill took the view that the claim being referred to was a Part 8 claim issued for the purpose of approval. Because it was a Part 8 claim it was a multi-track claim according to CPR 8.9(c) and therefore not one in respect of which the normal track would have the small claims track. He therefore awarded predictive costs.

If the District Judge was right then the wording of the CPR 45.7(2)(d) which referred to the claim which (but for the compromise) would have been issued, could never apply because a claim issued for approval is always a Part 8 claim.

Because the agreed damages in Dockerill and Masefield did not exceed a £1,000 for each claimant the conditions set out in CPR 45.(7)(2)(d) was not satisfied and costs therefore should be referred to detailed assessment.

Issue 2 – how were the costs to be assessed?
There was no reason why a small damages claim by an infant should be taken out of the small claims track merely because of the age of the claimant.

Should the removal of CPR 45 Part II of approval applications in respect of claims of less than £1,000 be reflected in the way in which the costs of such applications are assessed?

At the heart of this issue was the decision of the Court of Appeal in O’Beirne v Hudson. In that case where the costs order precluded assessment under CPR 27 but where a consent order had provided for payment of general damages of less than £1,000, it was established that the court was entitled to take into account the fact that had the claim not been settled and would have been allocated to the small claims track and the costs recoverable would have been limited.

There was an appropriate anomaly in that these cases were extracted from the Part 45 regime but were small track claims. This was the combined effect of CPR 8.9(c) and CPR 21.10(2)(b)(i) – to make them the multi track claims to which Part 27 had no application.

The resolution of the anomaly was that the costs judge was entitled to take into account the size and complexity of the claim under CPR 44.5(3). Consider whether the costs claimed in the part 21.10(2) of the proceedings were proportionate to the issues involved. The court would allow costs which were proportionate and would resolve any doubt in favour of the paying party. The court should not start with CPR Part 27 and measure each item of costs against what would be reasonable under that regime, but the court should consider whether it was proportionate and reasonable to instruct solicitors to act generally in the approval proceedings.

The vulnerability of the claimant did not in itself require a special approach.

The court was aware that the practical consequence of the ruling might be to discourage solicitors from taking on such cases; however, to apply a normal multi track assessment of costs in all such cases run contrarily to the purpose of CPR 45.7(2)(d).

Issue 3 – In a CPR 45 Part II – should counsel fee’s for attending the approval hearing be allowed?
In Turbridy, the claimant, a 15 year child, was injured in a RTA. Liability was admitted and damages were agreed at £2,100. Counsel attended the approval hearing on behalf of the claimant. It was argued on his behalf his fees should be separately allowable as a disbursement because they had been “necessarily incurred by reason of one or more of the Claimant; either a child or a protected party”.

For counsels fee’s to be recoverable in this circumstances there had to be some complexity which justified them being instructed to appear on the approval hearing. It was putting it too widely to say that a children and protected party merited the services of counsel in all cases. If the rules committee had intended that they would have said so. As it was, a much stricter test had to be satisfied. Many of these cases including this one involved no difficult issues and could be dealt with on the basis of written advice. The convenience of having counsel attend had to be borne by the solicitors as part of their fixed costs as if they were instructing a local agent.

Appeal in Dockerill and Masefield dismissed. Appeal allowed in Tubridy and Sawar.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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