Recoverability Of Counsel's Fees Where A Claim Has Exited The Pre-Action Protocol

Recoverability of Counsel's Fees where a claim has exited the pre-action protocol for low value personal injury (Employers Liability and Public Liability) claims (the Protocol).

Whilst the Introduction of the fixed costs regime was intended to provide certainty as to the costs which a successful party could recover, unfortunately, litigation continues to arise where the successful party seeks to recover additional disbursements.

In the recent case of Dover v Finsbury Food Group Plc the High Court set out its judgment in an appeal against the decision of a costs officer in relation to the recoverability of an advice on quantum from Counsel.

The Claimant sustained an injury in the course of his employment with the Defendant on 26 June 2015. He suffered nasty injuries to his hand and was left with damage to his right middle and index fingers. A Claims Notification Form was prepared and uploaded to the Portal on 23 July 2015. The Defendant failed to respond within time and the matter subsequently left the Protocol. The Defendant admitted liability for the Claimant's accident on 29 February 2016 subject to medical causation.

The Claimant served his medical evidence with a detailed Schedule of Special Damage and thereafter obtained advice from Counsel in relation to the value of his claim in a conference on 22 March 2017. On 6 September 2017 the Claimant put forward a Part 36 Offer of £93,000 and on 30 November 2017 the Defendant put forward a Part 36 Offer of £70,000 which was accepted on 19 December 2017.

In the Bill of Costs, Counsel's fee for the advice in conference was claimed in the sum of £650. In its Points of Dispute, the Defendant disputed that the Claimant was entitled to recover Counsel's fee for that advice. It was contended that no fee was payable under the relevant provisions of the Protocol where a claim had exited the Protocol if Counsel's fee had been incurred after the claim had left the Protocol. It was the Defendant's case that such costs were deemed to be included within the fixed recoverable costs. The Defendant's alternative argument was that, if Counsel's fee was recoverable in principal, the costs of such an advice should be limited to £150 plus VAT which was a reference to Part 45.23B of the Civil Procedure Rules (which allows the Claimant to recover the cost of an advice from a Specialist Solicitor or Counsel in relation to quantum, where the case proceeds within the Portal, the value of the claim exceeds £10,000...