COUNSEL’S FEE RECOVERABLE IN A £70,000 CASE STILL SUBJECT TO THE FIXED COSTS PROVISIONS: DECISION TODAY
In Dover v Finsbury Food Group Plc  EWHC B11 (Costs), Master Brown found that counsel’s fees can be recovered in a case that had been placed in the portal that subsequently settled for £70,000.
The claimant was injured at work. A CNF was submitted and the matter put on the portal. It fell out of the portal because the defendant failed to provide a response within the requisite period. A conference was held with counsel. The case subsequently settled for £70,000. The case had never been allocated to the multi-track.
THE ISSUE: WAS COUNSEL’S FEE RECOVERABLE?
Master Brown held that it was. He upheld the decision of the Costs Officer, who had allowed the fee at £500.00 plus VAT. The judgment contains a detailed consideration of the history of the fixed costs scheme. The defendant’s attempts to argue that the rules did not allow fees to be recovered at this stage were described as “strained”.
I think the legislative history is helpful on this point. It is clear that the concern which gave rise to the separate allowance under (2) (c) was the need for advice from counsel or special solicitor. As Mr. Mant said, a feature of the advice was that it should be of an independent nature. Indeed it seems to me clear that the particular concerns raised, which the government accepted, were that without the provision of such costs there was a risk that claims would be under-settled (one of the features of the fixed fee scheme being that legal representatives with conduct of the claim become entitled to the full fixed fee without reference to the work that has been done). Hence, specialist and independent advice (if reasonably required) would be payable by, in effect, a ring-fenced payment in the form of a disbursement.