Sarah Wait considers the recent decision of the High Court in the matter of Finsbury Food Group PLC v Dover  EWHC 2176 (QB) in relation to the fee recoverable for counsel’s advice on quantum in cases initiated in, but falling out of, the Low Value Portals.
Mrs Justice Lambert’s decision clarified that counsel’s fees for advice on quantum are not fixed in ex Protocol cases. Whilst at first blush this is welcome news for claimant solicitors and the counsel they instruct, the uncertainty around the circumstances in which such advices will be deemed to reasonably be required, and the quantum which will be recoverable for the same, remains.
The claim arose from a workplace accident suffered by Mr Dover, as a result of which he sustained injury to two of his fingers. The claim was initially valued at under £25,000 and was commenced in the Portal, as required by the Pre-Action Protocol for Low Value Personal Injury (EL/PL) Claims. However the matter fell out of the Portal, and consequently out of the scope of the Protocol, when the Defendant failed to respond to the claim within the requisite timeframe. Liability was subsequently admitted subject to causation, medical evidence was obtained by the Claimant, and Counsel advised on the value of the claim in conference. The claim ultimately settled for £70,000.
The Claimant’s Bill of Costs included a claim for counsel’s fee for advice in conference in the sum of £650 plus VAT. The Defendant argued that no such fee was recoverable in a claim which had exited the Protocol, and any such costs were subsumed in the fixed recoverable costs payable. In the alternative, the Defendant argued that the quantum for the advice was limited to £150 plus VAT. The Costs Officer rejected the Defendant’s arguments, albeit he assessed the cost of the advice down to £500 plus VAT.
The first appeal
The Defendant appealed the recovery, and alternatively quantum, of counsel’s fee for the advice to Master Brown of the Senior Courts Costs Office. The Defendant argued that:
- (1) CPR 45.29I(2)(c) permits the recoverability of the fees of counsel or special solicitor incurred only before the claim leaves the EL/PL Protocol;
(2) CPR 45.23B (in Section III) and Table 6A should be read as providing a damages upper limit of £25,000 for recoverability, and therefore there was no provision for recovery in the instant case;
(3) CPR 45.23B restricted counsel’s fees to the sum stated in Table 6A i.e. £150 plus VAT; and
(4) On a proper construction of CPR 45.29I (2) (c), CPR 45.29I (2) (h) did not permit recovery of counsel’s fees.
The Master ruled against the Defendant, however permission to appeal to the High Court was granted on the basis that the argument may have the potential to apply to a significant number of cases.
The second appeal
The Defendant appealed to the High Court on one point: that CPR 45.29I(2)(c), read in conjunction with paragraphs 7.41 and 7.44(4) of the Protocol, limited the recoverable quantum of counsel’s fee to £150 plus VAT.
CPR 45.29I reads:
- ‘(1) Subject to paragraphs (2A) to (2E), the court—
(a) may allow a claim for a disbursement of a type mentioned in paragraphs (2) or (3); but
(b) will not allow a claim for any other type of disbursement.
(2) In a claim started under the RTA Protocol, the EL/PL Protocol or the Pre-Action Protocol for Resolution of Package Travel Claims, the disbursements referred to in paragraph (1) are—
… (c) the cost of any advice from a specialist solicitor or counsel as provided for in the relevant Protocol…’
Paragraphs 7.41 and 7.44(4) of the Protocol read:
‘7.41 Any offer to settle made at any stage by either party will automatically include, and cannot exclude—
…(2) an agreement in principle to pay a sum equal to the Type C fixed costs of an additional advice on quantum of damages where such advice is justified under paragraph 7.8…’
‘7.44 Except where the claimant is a child or paragraphs 7.46 and 7.47 apply, the defendant must pay—
… (4) where an additional advice on quantum of damages is justified under paragraph 7.8, a sum equal to the Type C fixed costs to cover the cost of that advice.’
The Defendant urged the court to take a purposive approach to the construction of CPR 45.29I, and of the Protocol, and reminded the court of the rationale behind the introduction of the fixed costs regime, specifically to give all parties certainty as to costs which they may recover or be exposed to; to remove the process of costs assessment or disputes over costs which can generate further expense; and to ensure that costs are proportionate.
Decision on appeal
Mrs Justice Lambert held that the grammatical meaning of CPR 45.29I(2)(c ) was clear and unambiguous and that the phrase ‘as provided for in the relevant Protocol’ referred only to the type of disbursement rather than the cost allowed by the Protocol of the same.
Whilst accepting the points made by the Defendant in relation to the rationale of the fixed costs regime, the learned judge noted that claims which have fallen out of the Protocol are a ‘mixed bag’ with varying reasons as to why they have fallen out, and varying degrees of complexity, stating ‘it would be odd if the same fixed fee were to be recovered for valuing a straightforward claim worth £15,000 as for a claim which, as it turns out, includes a high claim for loss of earnings or handicap on the labour market, the quantification of which may involve considerable skill and expertise’. It was therefore unnecessary to consider a purposive construction, given that the application of the grammatical or plain construction could not be said to lead to an absurd result.
The court also rejected the Defendant’s submissions in relation to paragraphs 7.41 and 7.44 of the Protocol, holding that they did not apply to claims which had fallen out of the scope of the Protocol for any reason.
The Claimant’s submission that, had the intention been to fix the costs of legal advice in claims outside of the Protocol the drafter of Section IIIA could easily have included such a provision, was accepted. Specifically Mrs Justice Lambert found that the fact that CPR 45.29J permits claims for costs exceeding the fixed recoverable costs in ‘exceptional circumstances’, in the absence of similar provisions in relation to claims resolved under the Protocol, suggests a different and more flexible policy to claims which have fallen out of the Protocol.
In summary, Mrs Justice Lambert determined that none of the conclusions reached by Master Brown in his judgment were wrong and accordingly the Defendant’s appeal was dismissed.
Whilst it is clear that the fee for counsel’s advice on quantum will not be fixed in cases which start life in, but fall out of, one of the Low Value Protocols, there are no hard and fast rules in relation to the circumstances in which such an advice will be deemed to be reasonably required, and in relation to the levels of fee which may be recovered in respect of the same. It is clear that even where an advice is reasonably required, the fee claimed may be subject to detailed assessment, where its reasonableness will be evaluated by reference to the complexity involved in valuation of the claim.
Careful analysis will have to be undertaken by solicitors and the counsel they instruct, firstly of the basis on which the advice is required and secondly of the complexities in making an assessment of quantum. It follows that such advices are likely to be more readily justified, and the fees for the same recoverable, in cases which have fallen out of the Protocol as a result of their re-assessed value being outside of the scope of the Protocol, and those which have fallen out for other reasons but which involve more complex heads of loss such as pension loss and non-straightforward loss of earnings claims.
Conversely it appears unlikely that advices will be deemed to be reasonably required where the matter has fallen out of the Protocol for an administrative reason, such as non-compliance with timescales, where there are no complexities to the matter beyond those routinely dealt with in the Portal. Given this lack of clarity, early discussions with counsel are encouraged where it appears likely that such an advice will be sought.
Sarah Wait is a member of the Civil and Personal Injury Department at 18 St John Street Chambers. Sarah takes instructions in a wide range of personal injury matters including fast track trials, Stage 3 and Disposal Hearings, interlocutory hearings, small claims and costs and case management conferences. For more information, please click the links above or contact a member of the civil clerking team on 0161 278 8261 or via email firstname.lastname@example.org