TRAWLING THROUGH THE CPR: FIXED COSTS CONSIDERED BY THE COURT OF APPEAL: COUNSEL’S FEES INCLUDED IN REGIME: CONSTRUING THE CPR AS A WHOLE

I am grateful to barrister Sarah Robson for sending me a copy of the judgment of the Court of Appeal today in  Aldred -v- Cham [2019] EWCA Civ 1780.   It is one of those occasions where the Court of Appeal has to consider the fixed costs regime.  The Court trawled through the CPR and, two of the judgments, emphasise the importance of construing the rules as a whole.

“… in matters affecting the proper construction and meaning of the CPR (as of any other enactment), it is impossible to approach the matter in discrete compartments. It is necessary to construe any such instrument as a whole. I do not think that comparisons between the wording of the various sections of Part 45 of the Rules will always be avoidable. Nor do I think that such comparisons are unhelpful. It is necessary that the CPR and, even more so, particular Parts of them are approached and interpreted as a coherent whole. The fixed costs rules should not be allowed to hold within their various Sections different meanings for essentially similar words.”

 

THE CASE

The issue was whether counsel’s fees, necessary for an approval hearing, fell within the fixed costs recoverable.  Lord Justice Coulson gave the first judgment.

“The issue that arises in the present case concerns the recoverability of the cost of counsel’s advice as to the quantum of the proposed settlement of the RTA claim, in a case where the claimant is a child. The question for this court is whether that is a claim for a disbursement which should be allowed (in addition to the fixed recoverable costs) because, in the words of the relevant rule, it was “reasonably incurred due to a particular feature of the dispute”. That simple question is then said to raise other issues, some arising out of the use of similar wording in other parts of the fixed recoverable costs regime.”

THE DECISION

The Court of Appeal held that the particular characteristics of a claimant did not amount to a “particular feature of the dispute”.
35. Having considered these careful judgments, I prefer the approach of HHJ Wood QC. The fact that, in a particular case, a claimant is a child, or someone who cannot speak English, or who requires an intermediary, is nothing whatever to do with the dispute itself. Age, linguistic ability and mental wellbeing are all characteristics of the claimant regardless of the dispute. They are not generated by or linked in any way to the dispute itself and cannot therefore be said to be a particular feature of that dispute.
36. The particular features of the dispute in an RTA claim will commonly be matters such as: how the accident happened, whether the defendant was to blame for the accident, the nature, scope and extent of the injuries and their consequences, and other matters of that kind. For example, the particular circumstances of the accident may be sufficiently unusual to require an accident reconstruction expert, or the injuries may be so complex that they require a number of different experts’ reports. Such additional involvement of experts may also require specific advice from counsel. Depending always on the facts, such costs may be said to be a disbursement properly incurred as a result of a particular feature of the dispute.
37. In contrast, the cost of counsel’s advice in the present case was not necessitated by any particular feature of the dispute, and was instead required because it is an almost mandatory requirement in all RTA cases where the claimant is a child. It was therefore caused by a characteristic of the claimant himself and does not fall within the exception.
38. I reach that conclusion based on the plain words of r.45.29I(2)(h). I do not derive any particular assistance in that interpretation from the similar words used in r.45.12(3)(b) and r.45.19(2)(e), in Sections II and III of Part 45 respectively. However, I do consider that my reading of these words, which would limit recoverability of sums over and above the fixed costs to disbursements due to specific features of the dispute which has arisen between the parties, is consistent with the overall purpose of the fixed recoverable costs regime, and in particular its aim of ensuring that, save for express exceptions, the amount recoverable is limited to the sums set out in the tables by way of fixed recoverable costs. I come back to that topic again, in a slightly different context, in the next section of this judgment
6.3 Conclusion on Issue 1
39. Accordingly, I do not consider that the fact that the respondent was a child was a particular feature of the RTA dispute between the respondent and the appellant. In those circumstances, I do not consider that the fee for the advice fell within the rubric of r.45.29I(2)(h). That is sufficient, if my lord and lady agree, to allow this appeal.

WAS THE FEE RECOVERABLE FROM THE DEFENDANT?

The court went on to consider whether the fee was recoverable from the defendant.  It was held that it came within the fixed recoverable costs element.
“65. For the reasons set out above, even if I am wrong on Issue 1, and the fact that the respondent was a child was a “particular feature” of the dispute, I do not consider that the fee for the advice was recoverable under r.45.29I(2)(h). Taking Section IIIA in the round, I consider that any fee for that advice must be deemed to be included within the fixed recoverable costs in Table 6B.
66. I have reached that view primarily by reference to Section IIIA alone. I do not consider that the other Sections provide any real assistance in interpreting the relevant rule in this case. They certainly do not cause me to alter or modify my conclusion. To the extent that it matters, therefore, I would also allow the appeal on Issue 2.”

CONSTRUING THE CIVIL PROCEDURE RULES:  A NECESSARY TRAWL: THE JUDGMENT OF LORD JUSTICE McCOMBE

This was a concurring judgment. However McCombe LJ also added some observations in relation to how the CPR should be construed.

71. I add only a few lines of my own to reflect a very slight nuance between my reasons and those given by my Lord. I agree entirely with what he has said about Issue 1 and that would be determinative of this appeal, as he says in paragraph 39 above. However, with respect, I disagree with my Lord’s view of the assistance offered by Issue 2 in deciding the proper construction of the relevant rule in this case.
72. It seems to me that in matters affecting the proper construction and meaning of the CPR (as of any other enactment), it is impossible to approach the matter in discrete compartments. It is necessary to construe any such instrument as a whole. I do not think that comparisons between the wording of the various sections of Part 45 of the Rules will always be avoidable. Nor do I think that such comparisons are unhelpful. It is necessary that the CPR and, even more so, particular Parts of them are approached and interpreted as a coherent whole. The fixed costs rules should not be allowed to hold within their various Sections different meanings for essentially similar words.
73. As Coulson LJ notes in paragraph 62, r.45.19(2)(e) and r.45.29I(2)(h) contain essentially similar wording and it would be undesirable to accept Mr Granville Stafford’s submission that they should be given radically different meanings within the two Sections of the fixed costs regime. To my mind, Mr Mallalieu convincingly demonstrated that this would be the undesirable consequence of his opponent’s submission. I do not consider that this to be only a “small point” in arriving at a correct construction of the rule in question here.
74. While the trawl through the complicated provisions of the various Sections Part 45 was not entirely entertaining or easy, I consider that it was a necessary exercise in this case to ensure that the rules were applied as a coherent and consistent whole. I found myself in agreement with Mr Mallalieu’s submissions on this Issue. In my judgment, the exercise was unfortunately necessary, and I did find it of “real assistance” in interpreting the relevant rule in this case.
75. All that said, I am grateful to Coulson LJ for his comprehensive and pellucid analysis of the rules and his explanation of the legislative background to them. As I have said, largely for the reasons he gives, I would allow this appeal.