Finsbury Food Group Plc v Dover

Under Civil Procedure Rules 1998 r.45.29I(2)(c), reference to advice being provided for in the relevant protocol identifies the type of permitted disbursement. It does not fix the amount recoverable.

Where a claim has left the relevant low-value personal injury protocol, the cost of specialist legal advice on valuation is not limited to the fixed amount applicable to claims remaining within the protocol. The cost is subject to assessment in the usual way. That result is not absurd, because ex-protocol claims may vary significantly in complexity.

The claimant brought a personal injury claim against his employer. The claim initially proceeded under the Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims but exited the protocol after the defendant failed to respond to the claim notification form.

The claim later settled for £70,000. The claimant claimed £650 plus VAT for counsel’s advice on valuation. The Costs Officer allowed the fee at £500 plus VAT, and Master Brown rejected the defendant’s appeal. The issue before the High Court was whether Civil Procedure Rules 1998 r.45.29I(2)(c) limited the fee to £150 plus VAT under r.45.23B and Table 6A, or left it subject to assessment.

1. The appeal was dismissed. The Master’s conclusion that counsel’s fee was recoverable as a disbursement under Civil Procedure Rules 1998 r.45.29I(2)(c) was upheld.
2. The court applied the ordinary principles of statutory interpretation. The natural and ordinary meaning of statutory language is the starting point, read in its grammatical and statutory context. A different construction is justified only where the ordinary meaning produces an absurd or startling result: Pinner v Everett [1969] 1 WLR at 1266; AG v Prince Ernest Augustus [1957] AC 436 at 461.
3. Rule 45.29I(2)(c) permits recovery of the cost of advice of the type provided for in the relevant protocol. The words “as provided for” qualify the type of disbursement, not its quantum. This follows from r.45.29I(1), which distinguishes permitted types of disbursement from disbursements of types not mentioned in the rule.
4. The fixed sum of £150 plus VAT under r.45.23B and Table 6A applied to claims remaining within the protocol and settling at Stage 3. The relevant provisions did not extend that fixed sum to claims which had exited the protocol. The absence of an equivalent provision in Section IIIA was significant.
5. Leaving valuation advice in ex-protocol claims subject to assessment was not absurd. Claims may leave the protocol for materially different reasons and may involve substantially different levels of complexity. Assessment provides a mechanism for reviewing and reducing excessive costs.
6. The court agreed with Master Brown that r.45.23B and Table 6A did not apply to claims which had exited the protocol, and that the protocol did not incorporate those provisions expressly or by implication.

1. High Court (Queen’s Bench Division): appeal from Master Brown was dismissed.
2. Senior Courts Costs Office: Master Brown rejected the defendant’s challenge to recovery and quantum of counsel’s fee, following the Costs Officer’s allowance of £500 plus VAT.