Child Claimants will still be subject to the whiplash reforms, but they will not have to follow the Pre-Action Protocol for Personal Injury Claims below the Small Claims Limit in Road Traffic Accidents (“the SCRTA Protocol”). This means that the Claimant can comply with CPR 21.10 without worrying about the cost of complying with it and not being able to recover the costs.
The cost of advice on quantum cannot be recovered as a disbursement outside the portal. This is because it is not mandatory to deal with a specific aspect of the dispute, which is required to trigger CPR 45.29I(2)(h) (as per Aldred v Cham [2019] EWCA Civ 1780). However, in the portal, additional costs are awarded to cover the cost of quantum advice for a child. These costs are referred to as Stage 3 Type C costs and amount to £150 + VAT.
I appeared on behalf of a Claimant at a Stage 3 hearing where the issue arose that the Claimant had become an adult between the initiation of the claim and the hearing. Advice on quantum had been obtained. The Deputy District Judge (upon challenge by my opponent on behalf of the Defendant) wanted to consider whether a Claimant who became an adult before the Stage 3 hearing could recover the cost of his advice from the Defendant.
It became apparent the advice had actually been obtained after the Claimant turned 18 so the point was moot. I consider whether the Claimant would have been entitled to the Stage 3 Type 3 if he was a minor at the time the advice was obtained but before the Stage 3 hearing.
What are the costs rules?
You need to consider either the pre and post-1st October 2023 because depending on when the cause of action occurred, your client might be subject to a different Part 45. However, upon reading them in full, it would seem that both have the same wording. However, as most current Stage 3 hearings will be for accidents before 1st April 2023, those are the rules you will be considering.
Part 45.18(2) defines ‘Type C fixed costs’ as the ‘costs for the advice on the amount of damages where the claimant is a child’. Part 45.20 sets out the rules of what costs are awarded at a Stage 3 hearing when Judgment is more than the Defendant’s protocol offer:-
Where rule 36.29(1)(b) or (c) applies, the court will order the defendant to pay –
(a) where not already paid by the defendant, the Stage 1 and 2 fixed costs;
(b) where the claim is determined –
(i) on the papers, Stage 3 Type A fixed costs;
(ii) at a Stage 3 hearing, Stage 3 Type A and B fixed costs; or
(iii) at a Stage 3 hearing and the claimant is a child, Type A, B and C fixed costs; and
(c) disbursements allowed in accordance with rule 45.19.
I’ve placed emphasis on the phrase at the Stage 3 hearing and the claimant is a child as it clearly states that only, if the Claimant is a child at the Stage 3 hearing, will they be awarded Type C fixed costs.
So what about settlement?
Part 45.22 states that the rule applies where:-
- The claimant is a child
- There is a settlement after proceedings are started under the Stage 3 Procedure
- The settlement is more than the Defendant’s relevant protocol offer and an application is made to the court to approve the settlement.
It further goes on to say that where the Court approves the settlement at the settlement hearing, it will order the Defendant to pay Stage 1, 2 and 3 Type A, B and C fixed costs (CPR45.22(2)). If the court does not approve the settlement, the Defendant will be ordered to pay Stage 1 and 2 costs (CPR45.22(3)). It will also Order the Stage 3 Type A costs to be paid by the Defendant (CPR45.22(7)).
The caveat seems to be clear. The Claimant must be a child. If the child is not a child at the time the settlement is approved then Stage 3 Type C costs will not be paid. Even if the Court determines that the Stage 3 proceedings are not suitable, if the claimant is a child then the Court will Order the Defendant to pay Stage 1, 2 and 3 Type A, B and C fixed costs (CPR 45.23).
It seems hard to argue that an adult would be able to secure Type C costs for advice on quantum.
Could Counsel’s advice be claimed as a disbursement in this unique circumstance?
It is very unlikely due to Aldred v Cham [2019] EWCA Civ 1780. The Court of Appeal found that the recovery of the cost of advice on quantum was not a ‘particular part of the dispute’ which would trigger CPR 45.29I(2)(h), even though CPR required advice for the approval of a compromise under CP 21.10.
If a child, whose claim fell out of MOJ portal, was not able to recover the advice on quantum then it is very unlikely an adult who is in the portal but is no longer child will recover a fee for the quantum advice.
In some cases, the Claimant may turn 18 after the settlement but before the approval or the final hearing of Stage 3. This may happen despite no fault of the Claimant or their solicitors. For instance, if a hearing is postponed due to judicial unavailability, it may delay the resolution of the matter, leading to non-recovery of the Stage 3 Type C costs that would have been otherwise.
It would be advisable to take into account how much time is left until the Claimant reaches their 18th birthday. Based on this, a decision can be made whether to seek advice on the amount of compensation closer to the approval hearing or accept that the recovery will be cancelled and absorbed into the Stages 1, 2, and 3 Type A and B costs.
Information
AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026.
From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.