The defendant costs specialists

Dockerill v Tullett

By on Feb 27, 2012 | 13 comments

After the disappointing decision in Simcoe v Jacuzzi UK Group plc [2012] EWCA Civ 137 we now have some good news for defendants and insurers.

How should the courts approach a detailed assessment hearing where the case concerns a child, damages for personal injury are agreed at no more than £1,000 and the matter proceeds just in relation to an infant approval hearing? Because the matter settles pre-proceedings it will not have been allocated to the small claims track, as would be normal for a claim of this value. Part 8 proceedings for infant approval hearings are treated as being allocated to the multi-track. Can the claimant recover costs on the standard basis? No, said the Court of Appeal in Dockerill v Tullett [2012] EWCA Civ 184 (heard with the linked appeals of Macefield v Bakos and Tubridy v Sarwar). Although the Court should not simply impose small claims track costs, it should exercise scrutiny when deciding what legal involvement was required. In reality, this will usually mean limiting the legal fees to the costs of an advice on quantum (all that is required for an infant approval hearing). Any other solicitors’/barristers’ fees are likely to be disallowed.

What about the situation where a matter falls into the predictable costs regime for RTAs? The rules allow for recovery of counsel’s fees where they have been “necessarily incurred”. The Court ruled that the costs of counsel providing the written advice for the approval hearing will normally be recoverable but the costs of counsel attending the approval hearing will not normally be allowed.

These decisions will produce significant savings for defendants and insurers and provide long awaited certainty for law costs draftsmen and costs lawyers.

I note that costs counsel Roger Mallalieu appeared for the successful claimants in Simcoe. He appeared for the successful defendants in these cases. Roger is clearly on a bit of a roll.

    13 Comments

  1. Roger certainly is, and he deserves to be. He is an excellent opponent and one of the most genuinely courteous people I know at the Bar.

    Mark Friston

    27th February 2012

  2. Been on a role for a while!

    Anonymous

    27th February 2012

  3. This is an interesting decision, building as it does on the novel point raised in O’Beirne v Hudson that it is open to a court to say to a litigant that “you did not need a solicitor at all” – at least for part of the proceedings.

    But this begs a question. If the court says I didn’t need to instruct a City firm, I don’t get nothing, I get the costs I would have been entitled to had I instructed an appropriate firm. On the same logic, if the court says “you should not have instructed a solicitor” surely I get the costs I would have been entitled to had I acted in person, viz costs under CPR 48.6, which can be up to two-thirds of the costs of a solicitor.

    Thus, should the court disallowing costs under this decision not conduct an enquiry into how many hours it would have taken a layperson to research, prepare and present the claim, and as to the proper hourly rate to allow the layperson in question?

    If not, why not?

    Jacques Hughes

    27th February 2012

  4. Expect satellite litigtion on what constitutes a “sufficiently complex” claim to warrant the instruction of Solicitors beyond simply obtaining the report for the purpose of approval hearing

    Rob

    27th February 2012

  5. excellent point Jacques, but isnt it the case that CPR Part 45 fixes the costs recoverable, therefore it doesnt matter whether you calculate LIP rates or not, as the fee recovery is still fixed

    Anonymous

    27th February 2012

  6. shame nobody thought to mention to the CoA, that the “Rules Committee” never intended to have these Infant cases in the PCR costs, they were added much later, and as usual none of them thought through the implications of what they were doing

    Anonymous

    27th February 2012

  7. Anon @11.51 – no, the court was considering cases which fell outside the fixed costs regime because the agreed amount of damages for PI was less than £1,000. The effect of CPR 45.7(2)(d) is that such cases are not subject to fixed recoverable costs.

    Jacques Hughes

    27th February 2012

  8. As Simon’s note shows, The cases concerned two types of cases. Those with agreed damages above small claims limits (but within CPR 45 Part II limits) where the only argument was about the meaning of ‘necessarily’ under 45.19(2)(c) and those within small claims limits where the arguments were (I) whether CPR 45 Part II applied and (ii) if not, whether defendants could try and limit the assessable costs by arguing that the fact the claimant was a child was not a reason alone justifying costs in an otherwise small claims case. It was bad news for claimants on all points.
    As for Jacques’ suggestion, the LIP point was apparently not raised, but since LIP costs are no more available in small claims cases than solicitors’ costs (save for the very modest costs allowed) I don’t think it would help.

    Anon

    27th February 2012

  9. Meant 45.10(2)(c) obviously. Fingers and thumbs this morning.

    Anon

    27th February 2012

  10. Jacques, Part 45 fixes the costs recoverable (in Part 1) under the SCT

    Anonymous

    27th February 2012

  11. Anon @ 1.08: the fact the cases would have been small claims is not an answer, as both in these cases and in O’Beirne, the defendant had agreed to pay the claimant’s costs on the standard basis. As the court said in both this case and O’Beirne, CPR 27.14 is thereby ousted, and costs must be assessed. It was in order to get round this uncomfortable fact that the court developed the new proposition that, as part of an assessment, you could say “you did not need a solicitor”. So be it – but it does beg the question about CPR 48.6.

    Jacques Hughes

    27th February 2012

  12. Thanks Jacques,

    You are, of course, right about the focus on ‘necessary to instruct a solicitor’ in both this and O’Beirne, because in both those cases it was solicitors’ costs that were in issue. The key argument though is whether it can be reasonable and proportionate to recover more by way of costs in an unissued ‘small claims’ case than in an issued one.
    By that token, LIP costs would fail as well. Still, an interesting argument. We would only know the answer for sure once a higher court decided it. Can’t see many LIPs in small claims value cases being prepared to run that one. Pro Bono anyone?

    Anon

    27th February 2012

  13. Yes, ‘significant savings for defendants and insurers’

    Like taking candy from a baby some might say!

    anon

    28th February 2012

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