Counsel’s fees for valuing the claim in ex Portal Cases permitted and unfixed: Finsbury Food Group Plc v Dover [2020] EWHC 2176 (QB)

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Posted on: August 18th, 2020 by Catrin Watkins

This appeal from the Senior Courts Costs Office related specifically to whether CPR 45.29I (2)(c) fixed counsel’s fee for an advice on valuation of the claim at £150 plus VAT further to CPR 45.23B/Table 6A) or whether the fee fell outside the fixed fees and was to be subject to assessment.

The facts of the matter were that during his employment with the Defendant the Claimant had been pouring flour into a bread machine when his hand was pulled into the overhead extractor causing an injuries to his right, middle and index fingers. The Claimant required multiple surgeries and was absent from work for 3 months. The claim was initially valued at less than £25,000 and was duly submitted to the Low Value MOJ Portal. The Defendant failed to provide a response within 3 days and the matter exited the Portal. The Defendant requested that the claim be resubmitted to the Portal but this was refused by the Claimant.

Liability was admitted subject to causation and thereafter medical evidence was obtained and a Schedule of Loss prepared. An opinion was obtained from Counsel as to the value of the claim. Counsel advised on the value of the claim in conference on 22 March 2017.  The matter settled for £70,000 in December 2017.

Following the conclusion of the main action the Claimant prepared and served a Bill of Costs including Counsel’s fee the advice in conference in the sum of £650 plus VAT.

The Defendant disputed the fee on the basis that these costs should have been subsumed within the fixed costs or ought to be limited to £150 plus VAT further to CPR 45.23B/table 6A.

On assessment the Costs Officer rejected these arguments holding that the provisions permitted Counsel’s fee for advising in conference to be recovered as a disbursement however the fee was reduced to £500 plus VAT.

The Defendant appealed to Master Brown of the Senior Courts Costs Office who found that CPR 45.23B/Table 6A did not apply to ex Protocol claims. Permission was given for the matter to be appealed to the High Court as the result could affect a high number of cases although he was doubtful that it would be successful.

In dismissing the Defendant’s appeal Mrs Justice Lambert noted that provisions should be read in the ordinary way and that in CPR 45.29I(2)(c) the phrase “as provided for in the relevant Protocol” referred to the type of disbursement not the cost.

It was accepted that “had the drafter intended to fix the costs of legal advice for a claim outside the Protocol, then the drafter could easily have included a similar provision”.

Mrs Justice Lambert saw nothing absurd in the costs of such an advice on valuation not being fixed in those circumstances and she noted that in any case such costs were subject to assessment where they may be reduced.

Finally she upheld the findings of Master Brown in the SCCO.

While not dealt with in this appeal such an advice must be reasonably required to value the claim.

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