Aldred v Cham

Under Civil Procedure Rules r.45.29I(2)(h), an additional disbursement must be caused by a particular feature of the dispute. The relevant features concern matters such as liability, the circumstances of the accident, or the nature and consequences of injury. A claimant’s age, language or other personal characteristic is not such a feature.

Accordingly, the cost of advice required before approving a child’s settlement does not fall within the exception merely because the claimant is a child. The court also explained, alternatively, that routine work in child claims is deemed included in the fixed costs in Table 6B and is not separately recoverable as a disbursement.

The respondent, a child, was injured in a road traffic accident. After the appellant initially denied liability, the claim left the RTA Protocol process and became subject to Section IIIA of CPR Part 45. The parties later agreed a settlement of £2,000.

Because the respondent was a child, the settlement required court approval. His solicitors obtained counsel’s advice on the proposed settlement for £150. The settlement was approved and the respondent sought to recover that fee in addition to fixed recoverable costs.

District Judge Hale and, on appeal, HHJ Owen QC held that the fee was recoverable under r.45.29I(2)(h) as a disbursement reasonably incurred due to a particular feature of the dispute. On a second appeal, the central issue was whether the claimant’s childhood and the consequent need for advice brought the fee within that exception.

1. Appeal allowed. The fact that a claimant is a child is a personal characteristic, not a particular feature of the road traffic accident dispute for the purposes of Civil Procedure Rules r.45.29I(2)(h). The necessity for advice before settlement approval arose because of that characteristic and the procedural rules governing child settlements, rather than from any feature of the parties’ dispute.

2. A particular feature of the dispute ordinarily concerns matters such as how the accident occurred, liability, or the nature and consequences of the injuries. Unusual accident circumstances may justify reconstruction evidence, and complex injuries may justify further expert evidence or counsel’s advice. Such costs may qualify if reasonably incurred because of those dispute-specific matters.

3. The court approved the approach in Olesiej v Maple Industries and rejected the contrary approach in Madej v Maciszyn. A claimant’s inability to speak English, need for an intermediary, or similar personal circumstance does not become a feature of the dispute merely because it creates a practical need for expenditure.

4. Alternatively, Coulson LJ held that counsel’s fee was a disbursement within section 67 of the Solicitors Act 1974, but that did not make it separately recoverable. Section IIIA and Table 6B deem ordinary work incurred up to the relevant procedural stage to be included in fixed costs. Advice on settlement for a child is a routine step in many such claims and is therefore deemed included in Table 6B. Coulson LJ relied in part on the comprehensive character of the fixed-cost regime described in Sharpe v Leeds City Council, [2017] 4 WLR 98.

5. McCombe LJ and Nicola Davies LJ agreed that Issue 1 determined the appeal. McCombe LJ, with whose concern Nicola Davies LJ agreed, added that CPR provisions should be construed coherently as a whole. Comparison of materially similar wording in different sections of Part 45 may therefore be necessary, although it did not alter the outcome.

• Court of Appeal (Civil Division) — allowed the appellant’s second appeal and held that counsel’s settlement advice was not recoverable as an additional disbursement: [2019] EWCA Civ 1780.
• Nottingham County Court — HHJ Owen QC dismissed the appellant’s appeal from the costs assessment and upheld recovery of the fee.
• Nottingham County Court — District Judge Hale, on provisional and oral assessment, allowed the respondent to recover counsel’s £150 fee in addition to fixed costs.