Mr Philip Aldred v Master Tyreese Sulay Alieu Cham
| Jurisdiction | England & Wales |
| Judge | Lord Justice Coulson,Lady Justice Nicola Davies,Lord Justice McCombe |
| Judgment Date | 25 October 2019 |
| Neutral Citation | [2019] EWCA Civ 1780 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2019/0212 |
| Date | 25 October 2019 |
[2019] EWCA Civ 1780
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NOTTINGHAM COUNTY COURT
HIS HONOUR JUDGE OWEN QC
D00NG225
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McCombe
Lord Justice Coulson
and
Lady Justice Nicola Davies
Case No: A2/2019/0212
Roger Mallalieu (instructed by Taylor Rose Ttkw) for the Appellant
Andrew Granville Stafford (instructed by Total Legal Solutions True Personal Injury Solicitors) for the Respondent
Hearing date: 8th October 2019
Approved Judgment
Introduction
The fixed recoverable costs regime, which was originally introduced for RTA claims in 2003 1 and, following the Jackson Review, was significantly expanded in 2013, can be counted a successful innovation. Working in tandem with the new RTA Pre-Action Protocol (“the PAP”) it provides a structured system of costs recovery in this high volume, low value area of civil litigation. We were told that over 6 million claims have been started under the PAP since the inception of this new regime.
Two inescapable elements of that regime mean that, from time to time, this court is asked to construe the provisions of CPR Part 45 dealing with fixed costs. One such element is the undoubtedly complex nature of the provisions: the need to provide one comprehensive set of rules for so many different sorts of claim with so many potentially different features means that the rules are not always easy to navigate. The other is more basic: the understandable desire on the part of claimants to seek, through the rules setting out the exceptions, to recover from defendants more than the single sum stated in the tables by way of fixed costs, and the equally understandable wish of the defendants, wherever possible, to restrict the claimant's recovery to those fixed costs alone.
The issue that arises in the present case concerns the recoverability of the cost of counsel's advice as to the quantum of the proposed settlement of the RTA claim, in a case where the claimant is a child. The question for this court is whether that is a claim for a disbursement which should be allowed (in addition to the fixed recoverable costs) because, in the words of the relevant rule, it was “reasonably incurred due to a particular feature of the dispute”. That simple question is then said to raise other issues, some arising out of the use of similar wording in other parts of the fixed recoverable costs regime.
The Relevant Facts
On 5 September 2015 the claimant (whom I shall hereafter call ‘the respondent’), who was then aged seven, was injured in a road traffic accident caused by the appellant. The claim was started on 18 April 2016 using the PAP.
On 10 May, the appellant denied liability for the accident. As a result, the claim automatically fell out of the PAP and, in consequence, the relevant rules as to costs was provided by Section IIIA of CPR Part 45 (set out in paragraphs 26–29 below). We were told that, of the 6 million claims noted above, more than 50% fell out of the PAP process and that the most common reason for this was the defendant's denial of liability.
On 22 June, following negotiations, the appellant accepted liability. On 11 August, the appellant offered £2,000 in full and final settlement of the respondent's claim. The respondent's solicitors sought the advice of counsel as to the amount of the offer. Such advice was required because:
(a) CPR Part 21, which is concerned with Children and Protected Parties, provides at r.21.10 (1):
“21.10(1) Where a claim is made –
(a) by or on behalf of a child or protected party; or
(b) against a child or protected party,
no settlement, compromise or payment (including any voluntary interim payment) and no acceptance of money paid into court shall be valid, so far as it relates to the claim by, on behalf of or against the child or protected party, without the approval of the court.”
(b) Practice Direction 21, at paragraph 5.2, provides that:
“(1) An opinion on the merits of the settlement or compromise given by counsel or solicitor acting for the child or protected party must, accept in very clear cases, be obtained”.
It is not suggested that this was “a very clear case” such that counsel's advice was not required. Accordingly, as in most RTA cases involving children, there was a need in the present case to obtain counsel's advice on the merits of the proposed settlement.
In a written advice dated 6 September, counsel recommended acceptance of the offer. The fee for that advice was £150. On 20 October, in consequence of the advice, the respondent accepted the appellant's offer. It was then necessary to obtain the court's approval for the settlement. CPR Part 8 proceedings to achieve that end were started on 16 February 2017 and, on 2 July, District Judge Elmer approved the settlement in the sum of £2,000. He ordered the appellant to pay the respondent's costs to be assessed if not agreed.
On 27 July, the respondent served a bill of costs. In its response of 17 August, the appellant objected to the fee for counsel's advice, saying that it was outside the fixed costs regime provided by CPR 45 Section IIIA. Following service of the respondent's replies dated 9 January 2018, the matter came before District Judge Hale by way of a provisional assessment. He allowed the recovery of counsel's fee for the advice as a disbursement in addition to the fixed costs. The appellant sought an oral assessment.
There was an oral assessment on 10 August 2018. District Judge Hale did not change his view that the cost of the advice was recoverable in addition to the fixed costs. This was principally because the relevant rules (noted in paragraph 6 above) required an advice to be obtained for the purposes of a settlement involving a child. He said at paragraph 34:
“This is a particular situation where the rules require a particular piece of work to be done. There is no discretion about it. It can be done by solicitor or counsel, but the solicitor is not bound to take one course or the other. It seems to me that the fact the claimant is a child is a particular feature of the dispute which entitles and indeed requires the court to look to the exception to decide whether or not it is recoverable.”
The appellant appealed. The appeal was heard by HHJ Owen QC at Nottingham County Court on 21 December 2018. Judge Owen came to the same view as District Judge Hale. The heart of his decision is paragraph 21, which was in the following terms:
“Since an advice on valuation in certain cases is required there must be provision within section 111A which allows for the recovery of such fees. I am not persuaded that it would be permissible to draw the inference, which underpins the Defendant's argument, to the effect that such fees are implicitly provided for within the fixed recoverable costs allowed under this section. I do not consider that rule 45.291(2)(h) refers to a disbursement other than counsel's (or as appropriate, a solicitor's) fee for an advice on valuation. Not all cases under section 111A will concern child claimants. If the claimant is a child, the need to obtain counsel's advice on valuation would constitute a particular feature of the dispute. There is no justification for implying that those fees, when incurred, are already provided for within the fixed recoverable costs. The fact that counsel's fees are expressly provided for under sections II and III in addition to the provision for any other disbursement(s) does not of itself admit to the inference argued for by the defendant. On the contrary, it seems to me that the absence of such express reference within section IIIA to these fees support the District Judge's conclusion. Clearly, where reasonably incurred there must be provision for the recovery of those fees. Since they are not otherwise expressly provided for or referred to it is clear, in my judgment that the provision for “any other disbursement reasonably incurred due to a particular feature of the dispute” under rule 45.291(2)(h) must include the fee in question. There is no need or room within the structure or content of section IIIA to infer that that fee is provided for within the fixed costs identified in Table 6B.”
Notwithstanding that this was a second appeal, permission to appeal to this court was granted on the basis that the point in dispute was one of wide application.
The Background to the Fixed Costs Regime
The history of the fixed costs regime is set out in detail at paragraphs 44 – 50 of the judgment of Briggs LJ (as he then was) in Qader and Ors v Esure Services Ltd [2016] EWCA Civ 1109; [2017] 1 WLR 1924, and it is unnecessary to repeat it here. A limited regime for fixed recoverable costs arising out of RTA claims was originally introduced in 2003. Those rules are preserved (with some amendments) in Section II of Part 45, encompassing rules 45.9 – 45.15.
However, in his Review of Civil Litigation Costs Final Report in December 2009, Sir Rupert Jackson proposed a more extensive regime of fixed costs for RTA, Employer's Liability and Public Liability cases. His proposals were set out in chapter 15. They did not make any reference to or differentiate between claims which followed the PAP and claims which left the PAP process because, for example, liability was not admitted.
In their consultation paper of March 2011, the Ministry of Justice noted Sir Rupert Jackson's proposals but introduced the idea of different provisions depending on whether the claimant left the PAP process or not. It was that proposal which then found its way into the later set of amendments to the CPR.
These extensive amendments were introduced in 2013. Section III of Part 45 (rules 45.16 – 45.29) sets out the fixed costs regime where the claim...
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