Counsel fee not fixed for claim which left protocol

Counsel fees for a case which dropped out of the pre-action protocol do not need to be fixed, a senior costs judge has ruled.

Master Brown, sitting in the High Court (Senior Courts Costs Office), rejected an appeal from the defendant in Dover v Finsbury Food Group Plc to restrict costs to the fixed £150, instead upholding a decision of a costs officer to award £500. He held that the relevant provisions permitted recovery of counsel’s fee for advising in conference as a disbursement.

The personal injury claim was started under the pre-action protocol for low-value personal injury, but settled for £70,000 after leaving the portal.

In their points of dispute, the defendant disputed any entitlement to payment of counsel’s fee, contending that no such fee was payable under the relevant provisions in a claim which exited the protocol. It was submitted the costs were deemed to be included within the fixed fees.

Master Brown cited Qader, where Lord Justice Briggs (as he then was) described the protocol as providing an efficient modern framework for resolving modest PI claims, but not designed for resolving large claims or complex disputes. The judge in Qader ruled that PI cases that leave the portal and continue on the multi-track were not subject to fixed costs.

The defendants argued in Dover that the detail of Civil Procedure Rules did not permit recovery of specialist or counsel advice if incurred after a claim has exited the protocol. Master Brown said this reading of the provisions was ‘strained’ and there was no such restriction.

The judge said it was clear the government, when it adopted the rules, was concerned that without the provision of such costs, claims would be under-settled. Hence, specialist and independent advice (if reasonably required) would be payable by, in effect, a ring-fenced payment in the form of a disbursement.

He added: ‘In cases which exit the protocols on the grounds that the value exceeds £25,000, it is difficult to see, given the likely added complexity associated with them that it must have been intended that costs of any independent advice required would be so limited.’ The defendant’s appeal was dismissed.