Dockerill and another v Tullett, Macefield v Bakos and Tubridy v Sarwar 24.02.12

Where a road traffic accident (RTA) claim involving a minor settles pre-issue for less than £1,000, a solicitor’s costs may be limited to advice on settlement, subject to complexity. Counsel’s fees for attending an approval hearing are not recoverable.


This is a useful decision for defendants dealing with cases where an infant approval hearing is required, not least as it is handed down from Court of Appeal level. It is yet another demonstration of the courts’ reluctance to allow the recoverability of costs when ultimately that recovery is not justified.

Defendants have been arguing for some time that the Rules Committee would not have intended claimants to be able to recover additional costs merely as a result of an approval hearing.

Claimants have been quick to respond that, as a result of these decisions, solicitors will be reluctant to take on low value cases involving a minor. However, the result should force solicitors to establish more cost efficient ways of dealing with such cases. In addition, it will hopefully encourage greater support for local solicitors, who are readily able to represent claimants in their local courts where appropriate.


These conjoined appeals related to the recovery of costs in three RTA claims. They all settled prior to the issue of proceedings and infant settlement hearings were required:

  • Dockerill and Macefield - both settled for less than £1,000. The issue arose of whether fixed costs under CPR 45 section II applied, or whether costs should be subject to detailed assessment in accordance with CPR 45.5. If detailed assessment was the appropriate regime, then a further issue arose as to how the assessment should be carried out, where the case would, had proceedings been issued, have been allocated to the small claims track.
  • Tubridy - damages were agreed at £2,100. Counsel was instructed to advise on quantum and attend the approval hearing. The issue was whether counsel’s brief fee for attending the approval hearing was recoverable.


  • Dockerill and Macefield - the Court of Appeal held that CPR 45.5 applied. As a result, the costs should be subject to detailed assessment. This did not necessarily mean that the Claimants were only entitled to costs at the small claims level. However, it would be necessary to consider whether the claims were sufficiently complex to justify use of a solicitor other than for advice on settlement.
  • Tubridy - the Court of Appeal held that the use of the words “necessarily incurred” in CPR 45.10 meant that there must be some complexity in the case to justify using counsel for the approval hearing. Whilst counsel’s fees for providing an advice would ordinarily be recoverable, his fees for attending the hearing in this case were not recoverable.