Counsel’s Fees in Fixed Costs Cases: Court of Appeal success

Taylor Rose director of Dispute Resolution, Matthew Hoe, explains the significance of its success in the Court of Appeal case of Cham v Aldred.

The Court of Appeal has ‘fixed’ the fixed costs regime in CPR 45 Section IIIA, by resolving the problem of what is covered by the fixed costs and what can be allowed as a disbursement.

The case was about counsel’s advice fee in a child claim. It had been allowed by the district judge and circuit judge, despite the submissions of two excellent advocates, as a disbursement arising due to a particular feature of the dispute under CPR 45.29I(2)(h). That supposed feature was that the claimant was a child. The Court of Appeal has held that the fee is not recoverable as a disbursement in addition to the fixed costs. But its guidance goes further. Counsel’s fees will now rarely be allowed, and translation fees are also irrecoverable.

A disbursement arising due to a particular feature of the dispute is to be construed narrowly. A particular feature of the dispute must be something specific to the claim, such as how the accident happened, who was to blame, and the injuries sustained. It is not the ‘age, linguistic ability or mental wellbeing’ of the claimant, because they ‘are all characteristics of the claimant regardless of the dispute.’ Counsel’s fee for advice on a child settlement is not recoverable because the need for advice in children’s claims arising from the claimant’s minority, not a feature of the dispute. Similarly, translation and interpreting fees are not recoverable.

The court accepted that counsel’s fee was a disbursement, and that it was reasonably incurred, but rejected that meant it would be a disbursement recoverable under CPR 45.29I. The work done by counsel was already covered by the fixed costs. So generally, counsel’s fees will not be allowed in addition to fixed costs unless they fall under CPR 45.29I(2)(c) or, infrequently, (2)(h).

Coulson LJ gave the lead judgment. He concluded that the case could be decided on the interpretation of ‘particular feature of the dispute’ alone. He expressed views on whether the fee was a disbursement in the alternative. The majority, McCombe and Nicola Davies LJJ dissented on the question of whether the other parts of CPR 45 were an aid to construction; they held that they were.

The logjam of fixed costs cases with disbursement disputes should now clear.

The judgment is available here: https://www.bailii.org/ew/cases/EWCA/Civ/2019/1780.html