Court of Appeal gets tough on exceptions to fixed costs: Counsel’s fees and CPR 45.29I(2)(h)

Aldred v Cham [2019] EWCA Civ 1780

In this landmark decision the Court of Appeal took a trawl through the relevant provisions of the fixed costs regime in CPR 45 in order to determine whether and in what circumstances Counsel’s fee for an advice on settlement might be recoverable in addition to the fixed recoverable costs provided for under CPR 45.29C and Table 6B.

Firstly, disagreeing with both District Judge Hale and HHJ Owen QC, sitting at Nottingham County Court, Coulson LJ found that the fact that the Claimant was a minor did not amount to “a particular feature of the dispute”

“The fact that, in a particular case, a claimant is a child, or someone who cannot speak English, or who requires an intermediary, is nothing whatever to do with the dispute itself. Age, linguistic ability and mental wellbeing are all characteristics of the claimant regardless of the dispute. They are not generated by or linked in any way to the dispute itself and cannot therefore be said to be a particular feature of that dispute.”

This meant that the fee did not fall under the category of “any other disbursement reasonably incurred due to a particular feature of the dispute” in CPR 45.29I(2)(h):

“…the cost of counsel’s advice in the present case was not necessitated by any particular feature of the dispute, and was instead required because it is an almost mandatory requirement in all RTA cases where the claimant is a child. It was therefore caused by a characteristic of the claimant himself and does not fall within the exception… Accordingly, I do not consider that the fact that the respondent was a child was a particular feature of the RTA dispute between the respondent and the appellant. In those circumstances, I do not consider that the fee for the advice fell within the rubric of r.45.29I(2)(h).”

That was sufficient to determine that the fee was not recoverable in addition to the fixed recoverable costs and to allow the appeal.

However, in deference to the detailed submissions made by the parties’ respective Counsel Coulson LJ went on to consider the wider argument about the recoverability of such a fee as a disbursement within the fixed recoverable costs regime as a whole.

Whilst reaching the conclusion that a settlement advice fee was a disbursement within CPR 45.29I he found that such a disbursement could not be recovered if the item of work to which it related was (whether expressly or impliedly) already within the fixed recoverable costs set out in Table 6B (by reference to the stage reached in the claim):

“Counsel’s fees are a disbursement but, if the item of work to which they relate is deemed to be within the fixed costs regime at Table 6B, they will not be recoverable in addition to those fixed recoverable costs. That will cover the vast majority of counsel’s fees unless, of course, it can be shown that such fees arise within the particular exceptions at r.45.29I(2), including the catch-all at r.45.29I(2)(h).”

ALDRED V CHAM [2019] EWCA CIV 1780