When a claim starts life within the Pre-Action Protocol for low value personal injury claims but exits that portal, costs for counsel’s advice fees do not need to remain fixed.

Master Brown sitting at the Senior Courts Costs Office of the High Court handed down judgment in Dover v Finsbury Food Group plc. The Defendant’s appeal from the first-instance decision of Costs Officer Martin was dismissed. The Defendant argued that the counsel fee ought to be limited to £150, under the fixed costs regime in Part 45. The Judge disagreed and concurred with the Costs Officer’s decision that the fee was susceptible to an assessment in line with the factors set out at CPR 44.4(3). On the facts, he agreed with the Costs Officer that £500 + VAT was reasonable.

The Claimant had sustained personal injuries in a workplace accident; the claim began within the portal but then left the portal due to the Defendant’s failure to provide a response within the requisite time period. Counsel had advised on the claim value thereafter, and the matter was settled by way of a Part 36 offer from the Defendant. The Defendant disputed the counsel’s fee, arguing that there was a ‘temporal restriction’ within CPR 45.29I(2)(c), such that the higher amount claimed for counsel’s advice fee was only recoverable if the amount had been incurred prior to the claim exiting the portal. The Judge considered this reading of the provision to be ‘strained’ and unsupported by the wording within the rules at Section IIIA of Part 45.

The Judge traced the legislative history of the relevant provisions, and considered in close detail the case of Qader and others v Esure Limited [2017] 1 WLR 110. Qader is authority for the principle that personal injury cases which leave the portal and continue on the multi-track are not subject to fixed costs. The Judge held that the approach here, to a case which remained un-allocated but had exited the protocol, was consistent.

The Judge further held that even if his reasoning rejecting the other grounds of appeal was incorrect, CPR 45.29I(2)(h) acted as a sufficiently broad ‘catch-all’ provision which would have caught the higher fee in any event.

To fortify the conclusion, the Judge cited the policy reasons for not confining parties to fixed costs alone for higher value claims, stating that he found it ‘difficult to see’ a justification for limiting a litigant to recovering fixed costs alone, in light of the likely added complexity for matters which exceeded a claim value of £25,000.00.