Dockerill & Healey -v- Tullett; Macefield -v- Bakos; Tubridy -v- Sarwar [2012] EWCA Civ 184

Guidance on the recoverability of costs in low value infant settlement claims.

Both Dockerill and Macefield involved settlements of below £1,000 in cases which had been commenced by way of Part 8 proceedings.

The first issue to be addressed was the regime under which the costs in these cases fall to be assessed. The Court held that Part 8 claims are to be treated as multi-track proceedings by virtue of CPR 8.9(c). As neither the fixed nor predictive costs regimes applied, the costs fell to be assessed under the general rules in CPR 44.5.

The second issue was the basis on which the assessment of costs should be carried out. It was held that the costs judge should  look at the underlying claim for damages and consider whether the costs claimed were proportionate to the issues involved and reasonably incurred. Patten LJ added that in straightforward cases the court is likely to allocate the cases to their normal track and this will be a highly material consideration in determining whether it was reasonable to instruct solicitors to conduct the case (beyond providing a written advice as required by the Practice Direction).

The third issue was whether the cost of counsel’s attendance at an infant approval hearing was necessarily incurred and therefore recoverable as a disbursement under CPR 45.10(2)(c). Patten LJ concluded that it was not, adding there had to be some specific justification for counsel to be instructed for the costs of his attendance to be recoverable. The fact that the claimant is a child is not reason enough.  The costs of obtaining Counsel’s advice would ordinarily be recoverable as this is a specific requirement of CPR 21.10.