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Fixed costs rules appropriate for review says Supreme Court

21 May 2020

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In rejecting permission to appeal in Aldred v Cham the Supreme Court has expressed the view that it is appropriate for the Civil Procedure Rules Committee to re-visit the issue of disbursements in fixed cost personal injury cases.

In October 2019 the Court of Appeal decided this case in favour of the Defendant (Aldred v Cham [2019] EWCA Civ 1780) . It ruled that expenses incurred due to a particular feature of the Claimant, such as age or nationality, are not recoverable in ex-portal claims. The Claimant was a child and therefore required by the Civil Procedure Rules to obtain an advice on settlement. However the Court of Appeal decided that £150 spent on instructing Counsel to provide that advice was not recoverable. By analogy it also ruled that Claimants cannot recover the costs of an interpreter because their lack of English is not a particular feature of the dispute.

We acted for the Claimant in this case and we instructed Counsel, Nicholas Bacon QC and Andrew Granville Stafford, to draft an appeal to Supreme Court. They pointed out the anomaly that a Defendant who wrongly disputes liability is now better off than one who admits it. The latter will have to pay the costs of an infant advice whereas the former, as was the case in Aldred v Cham, will not. They also pointed out the effect the Court of Appeal’s decision has on those who, because of their disabilities, incur extra expenditure in relation to court hearings.

Their arguments were supported by PIBA (Personal Injury Bar Association) and APIL (Association of Personal Injury Lawyers), both of whom sought to intervene in the appeal.

A panel of the Supreme Court, consisting of Lords Hodge, Briggs and Leggatt, refused the application for permission to appeal on 19th May 2020. They said it did not raise a point of law of general public importance. However, and importantly, they expressed the view that it was appropriate for the Civil Procedure Rules Committee to consider this matter.

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