High Court: Counsel’s fee for ex-protocol cases not fixed

Lambert: Costs allowed will not be unchecked

Counsel’s fees for valuing claims which fall out of the personal injury protocols are not subject to fixed costs, the High Court has ruled.

Mrs Justice Lambert, sitting with the Senior Costs Judge, Andrew Gordon-Saker, as assessor, rejected the suggestion that this would be an “absurd outcome”.

Under rule 45.23B and table 6A, where protocol claims worth more than £10,000 are settled at stage 3, a counsel’s fee of £150 for valuing the claim can be recovered as part of the fixed costs.

Under rule 45.29I(2)(c), recoverable disbursements for cases that exit the portal include “the cost of any advice from a specialist solicitor or counsel as provided for in the relevant protocol”.

The claimant in Finsbury Food Group Plc v Dover [2020] EWHC 2176 (QB) was injured in an accident at work. The claim was initially valued at less than £25,000 and entered the portal, but exited because the defendant failed to respond within 30 days. The claim eventually settled for £70,000.

In his costs claim, the claimant sought to recover £650 for the advice of counsel on quantum, which the costs officer allowed in principle against the opposition of the defendant, but reduced to £500.

Master Brown rejected the defendant’s appeal, finding that rule 45.23B and table 6A did not apply to ex-protocol claims.

He said it was clear from CPR 45.16 and 45.17 that the fixed-costs regime did not apply to claims which had for any reason left the protocol.

Dismissing the defendant’s appeal against this, Lambert J ruled that, on a grammatical interpretation, the reference to “the relevant protocol” in rule 45.29I(2)(c) related to the type of disbursement covered, rather than the cost.

Further, none of the other types of disbursement listed in the section were fixed in the way the defendant submitted.

She accepted the claimant’s argument that, “had the drafter intended to fix the costs of legal advice for a claim outside the protocol”, then they could easily have done so.

The judge went on to reject the defendant’s submission that leaving the legal costs of valuing a claim which has fallen outside the protocol unfixed and subject to assessment in the usual way was an absurd outcome.

There were various reasons claims fell out of the protocol, she said, some of which – such as liability remaining in dispute or allegations of contributory negligence – indicated the claim was much more complicated.

“I see nothing absurd in the costs of such an advice on valuation not being fixed in those circumstances,” Lambert J said. “Indeed, it might be said that the converse is true.

“It would be odd if the same fixed fee were to be recovered for valuing a straightforward claim worth £15,000 as for a claim which, as it turns out, includes a high claim for loss of earnings or handicap on the labour market the quantification of which may involve considerable skill and expertise.

“Further, the costs allowed will not be unchecked. Just as in this case, they are subject to assessment and may be reduced on assessment.”

The drafting of part IIIA of CPR 45 “suggests a greater degree of flexibility generally to costs in claims which have fallen out of the protocol”, she added.

Lambert J upheld Master Brown’s decision, agreeing with the reasons he gave.

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