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Personal injury: Aldred v Cham [2019] EWCA Civ 1780

At the end of last month, the Court of Appeal gave judgment in an important appeal concerning the recovery of disbursements in ex-portal, fixed costs cases under CPR 45.29I(2)(h).

The claimant, who was a child, sought to recover the cost of counsel’s quantum advice. The claim had exited the RTA portal and CPR Part 45, Section IIIA applied. It was argued that the disbursement was recoverable as “any other disbursement reasonably incurred due to a particular feature of the dispute”. The County Court accepted the argument because the CPR required the advice and the fact the claimant was a child was a particular feature of the dispute.

The Court of Appeal disagreed and held the claimant’s status as a child had “nothing whatever to do with the dispute itself”. It was a characteristic of the claimant and was not generated by or linked to the dispute itself. On the meaning of “a particular feature of the dispute”, the Court said that it includes matters such as how the accident happened, whether the defendant was to blame for the accident, the nature, and the scope and extent of the injuries. Consequently, this may give rise to the cost of an accident reconstruction or other expert or specific advice from counsel.

Work done by counsel in advising on quantum in child cases was deemed to be included within the fixed costs, which at the different stages of the claim are considered to include all costs that ordinarily are incurred.

The decision has also made it clear that translation costs are not recoverable under CPR 45.29I(2)(h). Previously it was not uncommon for claimants to recover these. The Court of Appeal said that the fact that someone could not speak English was also not something that arose out of a particular feature of the dispute.

Claimants may feel hard done by given that quantum advice or translation services are required by the CPR. The Court of Appeal referred to the comments made in Sharpe v Leeds City Council [2017] 4 WLR 98, in which it was said that the fixed costs regime inevitably meant there would be swings and roundabouts. To a certain extent both parties lose out by virtue of costs being fixed.

James Tunley / 24th Nov 2019


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