Fixed Costs and Recovering Costs of Counsel’s Advice

Finsbury Food Group PLC v Scott Dover [2020] EWHC 2176 (QB)

… in the context of fixed costs under Section IIIA Pt 45 (low value personal injury claims).

Claimant solicitors had generally accepted counsel’s fees had to be painfully extracted from their fixed profit costs. HHJ Lambert has made it reasonably plausible to recover counsel’s fees on quantum, e.g. ahead of a settlement, in addition to the solicitors fixed profit costs subject to reasonable justification / amount – it is not capped at £150.

The question considered:

“1. This appeal from the Order of Master Brown of the Senior Courts Costs Office raises a single and narrow issue: whether CPR 45.29I (2)(c) fixes the quantum of counsel’s (or a specialist solicitor’s) fee for an advice on valuation of the claim at £150 plus VAT in accordance with CPR 45.23B (read with Table 6A) or whether the fee for such an advice falls outside the fees fixed in CPR 45 and is subject to assessment. As both parties accepted, the issue for my determination is unlocked by the proper statutory interpretation of CPR 45.29I(2)(c) viewed within the context of the fixed costs regime prescribed by CPR 45.” [HHJ Lambert]

i.e. what does Pt 45.29I(2)(c) mean / is it limited to £150?

(c) the cost of any advice from a specialist solicitor or counsel as provided for in the relevant Protocol;

“25. … However, claims which have fallen out of the Protocol are a mixed bag. Some small straightforward claims may fall out of the Protocol as a result of the failure by the defendant to respond to the CNF. But there are other reasons for a claim falling out of the Protocol including notification by the claimant that the claim has been revalued at more than the upper limit; where liability remains in dispute and where contributory negligence is alleged. As Stewart J recognised in Ferri v Gill [2019] Costs LR 367, these factors are likely to be associated with a much greater level of complexity, so making quantification of the claim all the more difficult. I see nothing absurd in the costs of such an advice on valuation not being fixed in those circumstances. Indeed, it might be said that the converse is true. 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. Further, the costs allowed will not be unchecked. Just as in this case, they are subject to assessment and may be reduced on assessment.”

It must not be forgotten that recourse to counsel must be still be justified. The context of this case was a £70,000 settlement. I consider the following factors are likely to support such justification as referred in para 25, extract above:

  1. Value, a helpful threshold could be £10,000 by analogy with Pt 45.23B (although that value alone is unlikely to be sufficient);
  2. Liability in issue;
  3. Contributory negligence is alleged;
  4. High claim for loss of earning;
  5. Handicap in the labour market.

This decision should be applauded. Some external / counsel input on value (and ideally this would have been the case on liability too) is a cross check for fair outcomes where claimant solicitors can be under a lot of pressure from the limited profit costs recoverable and defendant insurers are ultimately motivated to payout the lowest possible sum…

In my experience, claimant solicitors want to pile high plain vanilla cases. More difficult cases on liability or quantum are relatively unwanted due to their challenging nature and lack of clarity on whether the costs of external / counsel support will be recoverable. After all, who wants to work for an indefinite number of days for the possibility of being paid an unknown sum of money? As a matter of risk assessment, it does not make sense. This is the breach that geeky junior counsel can fill (because we love the law whether we get paid or not… or something like that). Another assessment in my experience is that counsel involvement, albeit can push up a settlement, tends to bring it to that conclusion more swiftly – that says a lot!

Claimant 1 Defendant Insurer 0

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