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P.I: The end of a "Rolls Royce Service" in Infant Approvals? Dockerill v Tullett; Macefield v Bakos; & Tubridy v Sarwar [2012] EWCA Civ 184

The above conjoined appeals addressed the recoverability of costs under CPR 21.10(2) in an infant approval hearing. The following issues were before the CA:

Whether costs in such claims are subject to a process of detailed assessment under CPR 44.5?

If detailed assessment is the appropriate regime, how such an assessment should be carried out where the claim for damages did not exceed £1,000 and would ordinarily have been allocated to the small claims track?

In cases that fall within the predictive costs regime, whether the fees of counsel to attend an approval hearing are ‘necessarily incurred by reason of one or more of the claimants being a child or protected party’ under CPR 45.10(2)(c)?

On the 1st issue the CA formulated a simple test. Where the value of agreed damages is less than £5,000 with personal injury damages of less than a £1,000 predictive costs will not be payable in line with CPR 45.7(2)(d).

On the 2nd issue, infant approval claims subject to detailed assessment will not be assessed in the same manner as million pound claims on the multi track. Instead the assessment involves looking realistically at the underlying claim for damages which has been settled and considering whether the costs are proportionate to the issues involved. In practice this means that in a straightforward claim costs incurred after the production of an advice on quantum supporting approval will rarely be recoverable.

On the 3rd issue, there needs to be something complex about the case for counsel’s fee to be “necessarily incurred.” Where a case can be dealt with by a written advice on the merits then counsel‘s attendance fee will be borne by solicitors as part of their costs.

However that is not to say counsel should not provide assistance in such claims. HHJ Hornby noted in Tubridy that Counsel provides a “Rolls Royce service” that will limit mistakes. Claimant PI solicitors may therefore still wish to pay a little extra for a smoother ride.

Vaughan Jacob / 1st Apr 2012


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