Landmark Court of Appeal decision on disbursements in fixed costs claims

The Court of Appeal has unanimously decided that, where items are claimed as disbursements for work already included within the fixed recoverable costs in Part 45 of CPR, then no additional sums for these disbursements are recoverable. 

Aldred -v- Cham [2019] EWCA Civ 1780 

The case involved a post-portal RTA claim, so the fixed costs were being claimed under CPR 45IIIA, the claimant was a minor and settled for £2k by acceptance of the defendant’s offer prior to issue of Part 7 so Part 8 approval proceedings were issued. The claimant’s solicitors had obtained an opinion from Counsel as to whether the offer of £2k was acceptable for the purpose of the approval hearing and the fee charged was £150.00 plus vat. That is the fee for Counsel’s advice under the “type C” fixed costs under CPR 45III to get an advice from Counsel when the claimant is a child but there is no similar provision specifically for such an advice in CPR 45IIIA. Instead, the claimant’s solicitors claimed the fee under CPR45.29I(2)(h) as a disbursement reasonably incurred due to a particular feature of the dispute.

The first question was whether the fact that the claimant was a child was a particular feature of the dispute so that the fee could be claimed under CPR45.29I92)(h). The Court of Appeal was referred to two first instance decisions from 2012 and 2013 which both related to interpreter’s fee’s being claimed due to the fact the claimant could not speak English as a particular feature of the dispute. In the 2012 decision the court found this was a characteristic of the claimant and not a feature of the dispute so that it could not be claimed under that exception and in the 2013 decision the court took the opposite view and allowed the interpreter’s fee, deciding that the fact that the claimant could not e.g undergo an examination by  the medical expert without an interpreter as being a feature of the dispute.

The Court of Appeal came down on the side of the former decision and found that the fact the claimant was a child was a characteristic of the claimant but not a particular feature of the dispute. Therefore, counsel’s fee could not be claimed under CPR 45.29I(2)(h) and would have to come out of the fixed costs in table 6B. This is not a problem in fixed costs under CPR 45II or CPR 45III since both of those parts of CPR 45 specifically allow for a fee for Counsel’s advice to be recovered when the claimant is a child. Also, if the settlement is above £10k, Counsel’s fee for an advice can be claimed under CPR 45.29(2)(c) although it would still be arguable as to whether it was justified in the particular circumstances of the claim.

Also, since the decision was based upon a consideration of judgments in relation to interpreter’s fees, the ruling will be applied in the same way to interpreter’s fees from now on so the fact that a claimant cannot speak English is a characteristic of the claimant and not a particular feature of the dispute and interpreter’s fees will no longer be recoverable in fixed costs claims. That part of the decision will affect interpreter’s fees in all fixed costs claims under CPR 45II, III and IIIA since parts II and III contain almost identical wording to part IIIA in relation to disbursements arising from a particular feature of the dispute.

This will affect all legal representatives who regularly pursue PI claims where the claimant requires the services of an interpreter. Many will have relied upon the previous 2013 first instance decision and the discretion of District Judges upon provisional assessments and oral reviews, however, this Court of Appeal judgement has settled the point in favour of paying parties and interpreter’s fees in fixed costs claims will not be recoverable at all.