Dockerill & Anor v Tullett

For a pre-issue application to approve a child’s settlement under CPR 21.10(2), the relevant claim in CPR 45.7(2)(d) is the underlying damages claim, not the Part 8 approval claim. Where that underlying claim would normally fall within the small claims track, the fixed costs regime in CPR 45 Part II does not apply to damages of £1,000 or less. Costs are instead subject to detailed assessment under CPR 44.5. Part 27 is not the starting point, although the size, complexity and likely track of the underlying claim are highly material to proportionality and to whether solicitors were reasonably instructed generally. Counsel’s attendance fees require a causal link to the claimant’s status as a child or protected party. Child status, stress and convenience alone are insufficient.

These conjoined appeals concerned costs arising from applications to approve settlements of children’s personal injury claims under CPR 21.10(2).

Dockerill and Macefield concerned whether the fixed costs regime in CPR 45 Part II applied, or whether costs required detailed assessment under CPR 44.5. The County Court decisions differed on whether the small claims costs regime should provide the controlling yardstick for assessment.

Tubridy concerned whether counsel’s fee for attending an approval hearing was recoverable as a disbursement under CPR 45.10(2)(c). The central issues were the meaning of the relevant claim, the proper approach to detailed assessment, and the meaning of necessity in relation to counsel’s fees.

1. Dockerill and Macefield. The appeals were dismissed. Under CPR 45.7(2)(d), the relevant claim is the damages claim which, but for the settlement, would have been issued for the agreed amount. It is not the Part 8 claim issued solely to obtain approval under CPR 21.10(2). Since the underlying damages in these cases did not exceed £1,000, the condition for applying the fixed costs regime was not satisfied. Costs therefore fell to detailed assessment under CPR 44.5.
2. The assessment had to be conducted under Part 44, not by treating Part 27 as the starting point or binding measure. The costs judge had to consider proportionality and reasonableness, including the size, complexity and likely track of the underlying claim. It was legitimate to examine whether employing solicitors generally for the approval proceedings was proportionate and reasonable, as well as scrutinising individual items. In these straightforward claims, the judge could consider whether work beyond the written advice on the settlement was justified. A child’s vulnerability did not automatically require a more generous approach.
3. Tubridy. The appeal was allowed. The word necessarily in CPR 45.10(2)(c) requires a causal connection between the claimant’s status as a child or protected party and the instruction of counsel. Counsel’s opinion on the merits, required by the Practice Direction to CPR Part 21, would ordinarily satisfy that test. Attendance at the approval hearing required additional justification, such as complexity in the case. General competence, convenience or the stress of a hearing did not suffice. In a simple case, attendance fees were part of the solicitors’ costs rather than a recoverable disbursement.
4. Lord Justice Carnwath and Lady Justice Arden agreed with Lord Justice Patten.

• Court of Appeal (Civil Division) [2012] EWCA Civ 184: dismissed the appeals in Dockerill and Macefield and allowed the appeal in Tubridy.
• Birmingham County Court: the initial decision in Dockerill awarded predictive costs. HH Judge Oliver-Jones QC reversed the decision on the applicable costs regime. After a detailed assessment by Deputy District Judge Fowler, HH Judge McKenna allowed the defendant’s appeal and directed a more restrictive approach.
• Lincoln County Court: in Macefield, the District Judge initially awarded predictive costs. HH Judge Robert Owen QC held that costs required detailed assessment under CPR 44.5.
• Bow County Court: in Tubridy, Deputy District Judge Frankish allowed counsel’s attendance fee. HH Judge Hornby dismissed the defendant’s appeal.