Rule committee urged to review disbursements in fixed-cost cases

Supreme Court: Permission denied

The Supreme Court has called on the Civil Procedure Rules Committee to review the issue of whether disbursements should be payable separately in fixed-cost personal injury cases.

The court has rejected permission to appeal last year’s Court of Appeal decision in Aldred v Chan, saying it did not raise a point of law of general public importance, but said it was appropriate for the committee to consider the issue.

The case centres on a single line in CPR 45.29I(2)(h), which allows additional claims for disbursements beyond the fixed fee to be claimed in cases where they are “reasonably incurred due to a particular feature of the dispute”.

The Court of Appeal ruled that this did not cover personal characteristics of the claimant, such as age or nationality (where an interpreter was required).

This meant counsel’s fees for an opinion on quantum in a traffic accident claim involving a child were included in the fixed costs.

Lord Justice Coulson said the fact the claimant was a child was not “a particular feature of the dispute” because it was a personal characteristic which had “nothing whatever to do with the dispute itself”.

Claimant lawyers said the decision threw into doubt the viability of low-value road traffic accident claims where counsel’s opinion is required, but the lawyer for the defendant said it meant disbursement disputes were now unlikely to hold up fixed-costs settlements.

True Solicitors, who acted for the claimant, instructed Nicholas Bacon QC of 4 New Square and Andrew Granville Stafford of 4 King’s Bench Walk to draft the application to appeal to the Supreme Court.

They argued that the Court of Appeal decision created an anomaly: a defendant in a portal case who admitted liability would, at stage three, pay a fixed cost of £150 for an advice on quantum where the claimant was a child.

But if the same defendant disputed liability and the claim proceeded under section IIIA of part 45, he would avoid paying that fee.

They also pointed out the effect the Court of Appeal’s decision has on those who, because of their disabilities, incurred extra expenditure in relation to a claim.

Their arguments were supported by the Personal Injury Bar Association and Association of Personal Injury Lawyers, both of which would have sought to intervene in the appeal had permission been granted.

    Readers Comments

  • Heather Beckett says:

    It is good news that the Soreness Court has raised this matter with the Rukes Committee. I wrote to the Rules Committee asking them to look at this back in November very shortly after the Court of Appeal decision in Aldred v Cham raising the Issue of the rule now being potentially incompatible with S19 of the Equality Act 2010 because the judicial construction now means that, for example, interpreter fees for non-English speakers or readers fees for blind witnesses required to give oral evidence under cross examination in fixed cost fast track trials are Irrecoverable and this may indirectly discriminate by reducing access to justice as they may be less likely to be able to secure representation.

    Other than an acknowledgment of my contact, I have not yet had a response.

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