I was instructed on a matter where the low value RTA had exited the portal, proceedings issued, default judgment had been obtained and the matter listed for a disposal hearing.
The Defendant made a Part 36 offer and settlement took place within a week or so before the disposal hearing.
The Claimant sought its advocacy fee from the Defendant. The Defendant argued that the matter was not a disposal hearing, but an infant approval (and consequently, no additional fee for the advocacy).
The issue was resolved without court intervention, but it did the argument hold weight?
What advocacy costs are awarded at a disposal hearing subject to Part 45?
As it stands, the decision in Bird v Acorn Group Ltd [2016] EWCA Civ 1096 means that a disposal hearing is treated as a trial. In fixed costs cases, the litigation costs are treated as post listing, pre trial. The advocacy costs are the same as the trial advocacy fees (depending on the value of the claim).
This particular case was valued between £0-£3,000 so the correct advocacy fee is £500+VAT.
Cost of advocacy at an infant approval hearing
The difficulty with fixes recoverable costs is how that MOJ portal cases have a prescribed sum for advocacy at the infant approval hearing. Ex portal cases do not.
Aldred v Cham [2019] EWCA Civ 1780 was a case where the Claimant wanted to recover the cost of advice on quantum and the Court of Appeal found the only scope was under CPR 45.29I(2)(h) which is where a disbursement was reasonably incurred due to a particular feature of the dispute. They also found that there was no particular feature to the dispute to warrant counsel’s advice. This would also include translation fees and counsel’s attendance at the infant approval.
It would therefore mean that my client would not be able to recover a cost of an attendance. Or does it?
Part 36 settlement for infants are not the same as it for adults
When an adult accepts a Part 36 offer, there are some consequences that are automatic as per CPR 36.14 – namely that the claim is automatically stayed.
With an infant, CPR 36.14(4) states:-
If that is the case, the claim could never be stayed. If it is never stayed, there is no real obligation to advise the Court. If the hearing remains a disposal hearing, surely that means the advocacy fee can be awarded?
Until the approval takes place, the hearing would technically remain as a disposal hearing. A party would need to advise the court to stay proceedings (as an adult), otherwise the claim could proceed to a hearing unnecessarily. If there is no hearing listed, then that is when an infant would need to notify the Court.
No doubt an unintended consequences which does not apply to every scenario but at the very least, there a reasonable argument to be heard.
Potential issues with this possible approach
This approach is not without risk of failing.
The first issue is that the purpose of settling before the day of the trial is to negate costs being incurred (or a liability to pay the other party’s costs). The Courts have already determined that even if costs have been incurred, costs are not recoverable unless settlement happens on the day of the trial.
This would follow Coleman v Townsend [2020] where Master Haworth determined that even though the matter settled the day before trial the associated trial advocacy fee (which the Claimant remained liable for) was not recoverable.
The above case is distinguishable (not to the Claimant’s benefit) in so far as the amount of time before the disposal hearing when settlement occurred would mean that a brief fee may not have been chargeable. There was, therefore, a reasonable incentive for the Defendant to settle and to avoid the additional advocacy costs.
One could argue that although unfair on the Defendant, the fact that the matter does not stay due to Part 36 could mean that unintended consequences is that the hearing remains a disposal hearing and the appropriate advocacy fees follow.
It most certainly would not assist an infant Claimant if a hearing has not been listed and the parties have to apply for an approval hearing.
Risk the wrath of the Court
My very first hearing as a fee earner was in respect of not granting the Defendant an extension of the Defence. Someone had introduced a policy to advise clients not to agree to extension. The Judge took great issue with this. The Defendant’s advocate also accepted that the Defence could have been prepared without an extension. The Judge scolded both of us, telling us both “not to stand on ceremony”, suck it up and work with each other.
This was my first experience of the wrath of the Court.
My concern is that the above approach to secure advocacy costs will incur the wrath of the Court even if there is an argument to be heard. The disposal hearing was listed for half an hour, which I find is the average infant approval heating estimated hearing time.
Now imagine that the hearing was a fast track trial listed for four hours. Imagine settlement took place 1-2 weeks before the hearing. The Claimant’s lawyer attend trial to advise the Judge “we have settled 1-2 weeks ago and we would like our cost of attending today”.
I cannot imagine a situation where the Judge would not be livvid. One could get chastised for wasting precious court time which could have been used for more important matters, such as family cases where (in some areas of England and Wales) have significant backlogs.
Ready for human trials?
On the one hand, I would be absolutely interested to argue this point. I would most certainly want to develop the argument further and not rely on just the above point. On the other hand, the gamble would be the Defendant’s costs (albeit arguably limited to £250 + VAT as per CPR 45.29H) and depending not the circumstances, incurring the wrath of the Court.
It would be down to those who instruct me as to whether they were wanting/willing to instruct me to make that argument.
Information
Alec Hancock is a CILEX Advocate and Litigator in Civil Proceedings. CILEX Regulation is his regulator. He can appear in open Court in all County Court matters save for family proceedings.
Alec Hancock conducts his advocacy through AJH Advocacy Limited. The Bar Standards Boards is the regulator.
Alec will attend any Court in England and Wales. He does not charge extra for:-
- Truro County Court
- Bodmin County Court
- Plymouth County Court
- Exeter County Court
- Torquay & Newton Abbot County Court
- Taunton County Court
- Barnstaple County Court
Contact Alec Hancock
Alec Hancock cannot accept instructions from the general public. He can accept instructions from any law firm or entity subject to professional availability and conflict checks.
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