PI Practitioner – each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area.

Recovering the costs of counsel’s fees at infant settlement approval hearings

A contentious area that has been clarified considerably by the Court of Appeal.

CPR 45.10 provides:

(1) The court –

(a) may allow a claim for a disbursement of a type mentioned

in paragraph (2)

(2) The disbursements referred to in paragraph (1) are –

(c) where they are necessarily incurred by reason of one or

more of the claimants being a child or protected party as

defined in Part 21 –

i) fees payable for instructing counsel;”

The Court may therefore allow counsel’s fees for attending an approval hearing where they arenecessarily incurred.

Dockerill & Healey v Tullett; Macefield v Bakos; & Tubridy v Sarwar [2012] EWCA Civ 184

In these linked appeals the Court of Appeal concluded (in Tubridy) that the costs of instructing Counsel to attend an approval hearing would not normally be recoverable. It was held that the word “necessarily” imports a causal link which is not established merely by general considerations such as that counsel may be more competent or better equipped to deal with a hearing than a local agent appointed on an ad hoc basis.

Patten LJ held (at [54]) that: “for counsel’s fees for attending a hearing to be recoverable there must, I think, be some complexity in the case which justified their being instructed to appear on the approval hearing. It is not enough to say that counsel would help to remove the stress of the occasion. That is a problem in every case. It is not unique to claimants under CPR r.21.10” and at [56]: “Many of these cases (and this one seems to be no exception) do not involve difficult issues and can be dealt with shortly on the basis of the written advice on the merits.  In such cases the convenience of having counsel attend the hearing has, I think, to be borne by the solicitors as part of their costs just as they would have had to meet the costs of instructing a local agent”.

This determination did not affect the recoverability of the costs of instructing Counsel to prepare a settlement advice, which would normally be a recoverable cost because they are a specific requirement of Part 21.10 proceedings.

February 4, 2013 · Editorial Team · Comments Closed
Posted in: News