No Procedural Tension Between CPR 44.11 And s57 of the Criminal Justice and Courts Act 2015

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The Senior Courts Costs Office’s decision in XX v Young & Aviva Insurance Limited [2025] EWHC 2443 (SCCO) confirms that costs judges cannot make quasi-fundamental dishonesty findings during detailed assessment proceedings.

Background

The dispute originated from a road traffic accident in which the Second Claimant, a 62-year-old woman, was struck by a vehicle driven by the First Defendant while crossing a road. The Second Defendant, Aviva Insurance Limited, was the insurer liable to satisfy any judgment. The Claimant sustained significant injuries, including pelvic and acetabular fractures requiring surgical intervention, with an anticipated earlier need for a hip replacement. The claim proceeded on quantum only, with liability remaining in dispute, and the parties eventually settled at a Joint Settlement Meeting for £149,000, a sum expressed to be “net of contributory negligence” [§49]. The consent order provided for the Second Defendant to pay the Second Claimant’s costs, to be assessed on the standard basis, with a specific term that neither party would be precluded from raising conduct issues during the assessment [§85].

The Second Claimant’s bill of costs was drawn in the sum of £517,985. The detailed assessment was heard over two separate three-day sittings before Costs Judge Nagalingam, during which interim written judgments were provided. Following the line-by-line assessment, the bill was significantly reduced to £339,565.16, a reduction of approximately 34% [§2]. A further judgment on 4 August 2025 addressed the issue of proportionality, applying an additional reduction which effectively concluded the detailed assessment. The reduction to profit costs alone, excluding the costs of the assessment, amounted to approximately 38% [§3].

Costs Issues Before the Court

The matter before the court was the Second Defendant’s application for permission to appeal the judgment of 4 August 2025. The application focused on the judge’s decision regarding proportionality and his rejection of the Second Defendant’s arguments for a costs reduction based on the alleged misconduct of the Second Claimant under CPR 44.11 [§25]. The central issue was whether the judge erred in his approach by not making further reductions to the bill on these grounds. The Second Defendant argued that the case raised important points of principle concerning the relationship between allegations of fundamental dishonesty in the substantive claim and the ability to seek costs sanctions for misconduct on assessment.

The Parties’ Positions

The Second Defendant’s Position

The Second Defendant, represented by Ms McDonald, sought permission to appeal on two grounds. Firstly, under CPR 52.6(1)(a), it was argued that the appeal would have a real prospect of success. The defendant contended that the judge failed to properly consider the Second Claimant’s failure to provide evidence explaining why she accepted a settlement sum significantly lower than her pleaded claim following the disclosure of surveillance evidence [§25(c)]. It was submitted that the judge erroneously reversed the burden of proof and neglected to consider proportionality-based reductions for costs incurred after the date the Claimant should have recovered, and for work on heads of loss (future losses and accommodation) for which no damages were ultimately recovered [§28].

Secondly, under CPR 52.6(1)(b), it was argued there was a compelling reason for the appeal to be heard. The defendant submitted that the judgment created a problematic juxtaposition, implying that defendants must take allegations of fundamental dishonesty to trial to secure a finding under section 57 of the Criminal Justice and Courts Act 2015, rather than seeking a conduct-based reduction under CPR 44.11 at the costs assessment stage [§25(b)]. It was suggested that guidance from an appellate court was needed on this point, with an anecdotal assertion that the Federation of Insurance Lawyers (FOIL) had an interest in the outcome [§15].

The Second Claimant’s Position

The Second Claimant, represented by Mr Mason, resisted the application. While his submissions are not detailed in the judgment, the court’s decision reflects that the Claimant’s position aligned with the judge’s reasoning: that the bill had already been substantially reduced, that the costs order agreed by the parties did not contain the limitations the defendant now sought, and that the assessment was not the correct forum to re-litigate substantive allegations that could and should have been pursued before the trial judge.

The Court’s Decision

Costs Judge Nagalingam dismissed the application for permission to appeal [§109]. Addressing the first ground, the judge held that the appeal would not have a real prospect of success. The court rejected the argument that it had failed to consider the Claimant’s lack of explanation for the settlement, noting that the settlement was a commercial agreement net of contributory negligence and that a party cannot be compelled to waive privilege concerning its reasons for settling [§105]. The judge also found no merit in the arguments regarding further proportionality reductions. He clarified that it was not open to him to retrospectively determine a date of full recovery or to assume that nil damages were recovered for specific heads of loss, as the global settlement sum was not apportioned [§67].

The judge emphasised that the purpose of a detailed assessment is not to hear arguments a party wished it had run but did not [§57]. He noted that the defendant could have sought an issues-based, time-limited, or percentage-based costs order when settling the case if it wished to protect its position, but it had agreed to a standard order for costs [§58-60]. The significant reductions already applied (a 44% reduction in time claimed for work on documents [§63]) were deemed sufficient to bring the costs to a proportionate level.

On the second ground, the judge found no “compelling reason” for an appeal. He firmly rejected the notion of a tension or “lacuna” between the fundamental dishonesty regime in section 57 of the 2015 Act and the general misconduct provision in CPR 44.11 [§77]. The judge reasoned that the two mechanisms serve distinct purposes: section 57 provides for the dismissal of a claim, a serious step requiring a trial, whereas CPR 44.11 allows for costs sanctions for a broad range of unreasonable or improper conduct [§78]. He found the defendant’s argument that the judgment would lead to a blocking of the courts with trials to be speculative and unsupported by any evidence, noting the absence of any formal interest from FOIL [§94-98].

Finally, the judge confirmed that he had properly considered and rejected the CPR 44.11 misconduct argument during the assessment, finding the threshold for a finding of unreasonable or improper conduct had not been met [§107]. Consequently, permission to appeal was refused. There was no order as to the costs of the permission hearing, as the respondent’s attendance was not directed by the court and the substantive costs of the assessment had already been agreed between the parties [§115].

 

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CPR 44.11 | Claimant’s Costs Of £174,565.79 Reduced To Nil

Direct CPR 44.11 misconduct case with complete disallowance of costs for unreasonable behaviour

Allegations of misconduct and the court’s powers under CPR 44.11

Comprehensive analysis of CPR 44.11 powers and requirements for misconduct findings

CPR 44.11: Misconduct in detailed assessment proceedings

Court of Appeal authority on misconduct in detailed assessment with mis-certification issues

Solicitor’s Costs Budget Figure, Prepared on Reasonable and Proportionate Basis, Does Not Inherently Constitute Misleading or Improper Conduct Under CPR 44.11

Recent 2025 High Court decision on CPR 44.11 threshold for misconduct

Fundamental dishonesty found on appeal by reason of material non disclosure

Court of Appeal case distinguishing fundamental dishonesty from general misconduct

Appeals from costs judges: Seeking permission to appeal

Procedural guidance on permission to appeal from costs judges under CPR 52.6

QOCS Protection Lost Where Dishonesty Inflated Claim Value By 100%

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Ms O’Connell, a former gunner in the Royal Horse Artillery, brought proceedings against the Ministry of Defence following a riding accident in September 2015. The claim was pursued both in negligence and under the Animals Act 1971, seeking damages totalling £2,446,738.66.

The defendant sought not only dismissal of the claim but also a finding of fundamental dishonesty and permission to enforce any costs order against the claimant under CPR 44.16(1), which provides that costs orders “may be enforced to the full extent of such orders with the permission of the court where the claim is found on the balance of probabilities to be fundamentally dishonest.”

The allegations centred on surveillance evidence from March 2022 showing the claimant performing physical activities inconsistent with her reported disability, together with evidence regarding her responsibility for horses, representations about vehicle adaptations, and other material inconsistencies.

The Parties’ Positions on Fundamental Dishonesty and Costs

The defendant argued that the claimant had misrepresented her disability in a manner that constituted fundamental dishonesty. They relied particularly on surveillance footage showing the claimant driving a manual transmission horsebox and performing various physical tasks using her allegedly disabled left arm. The defendant submitted that the dishonesty tainted the entire claim, affecting claims for general damages, loss of earnings, and future care costs.

The defendant also relied on sophisticated attempts to conceal evidence, including Facebook messages showing the claimant seeking someone to provide false evidence about vehicle adaptations that had never occurred.

The claimant contended that she had been consistent in reporting her disability to medical experts and that the surveillance evidence showed only brief periods of exceptional activity enabled by pain medication and a spinal cord stimulator. She argued that any inconsistencies could be explained by the stress of lengthy litigation and pointed to her continued invasive treatment as inconsistent with dishonesty.

The Court’s Analysis | Applying CPR 44.16 Fundamental Dishonesty Principles

The court applied the dishonesty test from Ivey v Genting Casinos Limited, requiring first a subjective assessment of the claimant’s actual state of knowledge, then an objective determination of whether the conduct was dishonest by the standards of ordinary decent people.

For fundamental dishonesty, the court applied the approach in Howlett v Davies, distinguishing between dishonesty that is merely “incidental” or “collateral” and dishonesty that goes “to the root of either the whole of his claim or a substantial part of his claim.”

The judge considered the three questions from Muyepa v Ministry of Defence: when the dishonest conduct started, whether it tainted the whole claim, and how the value of the underlying valid claim compared with the dishonestly inflated claim.

Key Findings on Dishonesty

The court found that the claimant had been fundamentally dishonest across multiple areas:

Surveillance evidence: The differences between what the claimant told experts and what she could be seen doing were “stark” and not capable of explanation by assistance from her friend or by pain medication. The claimant’s presentation on video was “of someone with normal or near normal function in their left upper limb and shoulder.”

Responsibility for horses: The court rejected the claimant’s evidence that she was merely helping a friend, finding that she had been responsible for the care of horses on a long-term basis, contradicting her accounts of disability.

Vehicle adaptations: The court found that the claimant owned two different white Audi A3 vehicles, transferring the number plate between them in December 2022 after being asked to provide evidence of adaptations. Facebook messages demonstrated the claimant seeking false evidence about vehicle alterations that had never occurred.

Employment capacity: The claimant’s schedule claimed she was only fit for part-time work, but she told an investigator she was working full-time hours.

The CPR 44.16 Fundamental Dishonesty Finding

Applying the Muyepa questions, the court found:

    • The dishonest conduct started by December 2018 when the claimant told her orthopaedic expert she had adapted her vehicle when she had not.
    • The dishonesty tainted the whole claim because it went to the extent of the left upper limb disability which formed the basis for all compensation claims.
    • The underlying valid claim would have been worth perhaps 50% of the dishonestly inflated claim, despite the claimant still having had a substantial claim due to her lost army career.

The Costs Decision

The court concluded that the dishonesty went to the heart of the claim, supporting higher general damages, a significantly greater loss of earnings claim, and a claim for future support to which she would not otherwise have been entitled.

The judge noted that the claimant had “persisted with her dishonesty over a long period” and had “sought to engage others” with “sophisticated” attempts to conceal the truth. The court found this “an appropriate case in which to grant permission to the Defendant to enforce any order for costs it may obtain against her to its full extent.”

The QOCS protection that would ordinarily apply to this personal injury claim was therefore displaced, allowing the defendant to enforce costs orders against the claimant without the usual restrictions under CPR 44.13-44.16.

Broader Implications

The case demonstrates the application of established fundamental dishonesty principles to sophisticated attempts at concealment. The court’s willingness to examine Facebook messages and vehicle registration transfers shows the detailed scrutiny that may be applied where fundamental dishonesty is alleged.

The judgment confirms that where dishonesty affects the core presentation of a claimant’s disability rather than being merely collateral to minor aspects of the claim, removal of QOCS protection will follow. The case also illustrates how multiple strands of inconsistent evidence can combine to establish a pattern of fundamental dishonesty that taints an entire claim.

Fundamental dishonesty found on appeal by reason of material non disclosure

CPR 44.3(5) Factors Considered | Proportionality Reduction Applied To Internal Communications Following Line-By-Line Assessment

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The Senior Courts Costs Office has provided valuable guidance on proportionality principles in a personal injury case where a bill totalling £517,985 was reduced by over £193,000 following detailed assessment. In XX v Jordan Young & Aviva Insurance Limited [2025] EWHC 2073 (SCCO), the court examined how vulnerability factors under CPR 44.3(5)(f) interact with proportionality considerations, whilst also clarifying the court’s jurisdiction regarding retrospective conduct allegations.

The Costs Context

The costs dispute arose from personal injury proceedings that settled for £149,000 net of contributory negligence, having been pleaded at up to £2.5 million. Leigh Day’s bill comprised profit costs of £349,826.92, counsel’s fees of £39,638.54, other disbursements of £43,783.05, and VAT of £84,736.49. The defendants challenged whether costs exceeding £500,000 bore a reasonable relationship to the settlement achieved.

Following a three-day detailed assessment before Costs Judge Nagalingam, the initial line-by-line assessment reduced the bill to £339,565.16, representing a 34.4% reduction. However, the court’s proportionality analysis resulted in further cuts, ultimately bringing the total down to £324,029.77.

The Proportionality Assessment | West v Stockport Applied

The court applied the mandatory approach established in West v Stockport NHS Foundation Trust [2019] EWCA Civ 1220, completing the line-by-line assessment before considering proportionality. Having given a preliminary indication that the costs as claimed appeared disproportionate, Costs Judge Nagalingam analysed each factor under CPR 44.3(5).

Sums in Issue | Beyond Settlement Figures

The court rejected any limitation to the £149,000 settlement figure. Instead, it adopted a “notional bracket” approach spanning £149,000 to £2.5 million as representing the range of possible outcomes. The judge concluded, however, that whilst the true value exceeded £149,000, it was realistically closer to that figure than the pleaded maximum.

The court noted that the settlement terms expressly referenced contributory negligence, indicating the gross value exceeded the net settlement regardless of any conduct arguments.

Complexity and Conduct Factors

The litigation was neither straightforward nor particularly complex. Liability remained disputed throughout, with significant injuries creating medical complexity that generated legal complexity in quantifying damages. The court recognised that the defendants’ conduct in keeping liability live without making early settlement proposals generated additional work for the claimants.

Claimant Vulnerability | Multiple Contributing Factors

The court determined that claimant vulnerability was a relevant factor under CPR 44.3(5)(f). The judge identified several contributing factors:

  • Significant physical injuries sustained by the claimant
  • Impact on family members from the same incident
  • Isolation during Covid-19 lockdowns affecting a previously sociable individual
  • Language barriers requiring interpreters for documentation
  • The claimant’s age and specific dialect requirements

The court emphasised there is “no automatic presumption that a Claimant of advanced years alone equates to vulnerability,” but found the combination of factors meant the solicitors were dealing with a vulnerable client requiring additional work.

Surveillance Evidence and Retrospective Conduct Allegations | Court’s Jurisdictional Limits

The defendants tried to use the assessment proceedings to establish misconduct and exaggeration based on surveillance evidence, despite having already agreed settlement terms and a standard basis costs order. The court firmly rejected this approach, stating: “I rejected the assertion that on an assessment of costs I could retroactively conduct a trial of an issue that the Defendant had alleged but neglected to run to trial as an argument.”

The judgment clarifies that agreed terms in costs orders referring to conduct do not create a gateway for retrospective determinations of issues not pursued at trial. Such clauses are unnecessary as parties can always raise conduct issues in points of dispute.

The Final Proportionality Reduction | Internal Communications Targeted

Despite finding vulnerability factors, the court concluded the assessed sum remained disproportionate. Rather than applying a broad percentage reduction, the court adopted a targeted approach, identifying internal communications as requiring further scrutiny.

This element had already been reduced from £27,724.50 to £22,946.15 during line-by-line assessment but was cut further to £10,000 plus VAT on a broad brush basis. The court considered this reasonable for the case circumstances, resulting in base profit costs (excluding assessment costs) of £169,534.99 plus VAT.

QOCS Protection Limited To 50% Of Costs In Mixed Personal Injury Claims

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In Searson v Chief Constable of Nottingham Constabulary [2025] EWHC 1982 (KB), Wall J’s costs decision following a partially successful appeal provides instructive guidance on how courts approach QOCS protection in mixed claims. The case demonstrates that even claimants bringing identical causes of action on the same claim form can face dramatically different costs consequences depending on whether they include a personal injury element.

The Costs Orders | Contrasting Protection Levels

Following HHJ Owen’s dismissal of all claims at trial, the costs orders strikingly differed between the two claimants:

  • Mr Searson: No QOCS protection – fully liable for the defendant’s costs
  • Mrs Searson: 50% QOCS protection under CPR 44.16 – enforcement limited to half the assessed costs

These differentiated orders survived appeal, confirming important principles about individualised assessment of QOCS protection.

Background | The Claims and Costs Context

The Searsons brought claims for false imprisonment, trespass to person and trespass to goods following their arrest and detention in March 2019. Crucially for costs purposes, Mrs Searson alone included a personal injury claim, alleging physical and psychological effects on her pre-existing health conditions.

The appeal succeeded only on a technical point regarding Mrs Searson’s detention review, establishing unlawful detention for 2 hours 14 minutes but resulting in nominal damages of £1.

The QOCS Analysis | Individual Assessment Required

Mr Searson | No Personal Injury Means No Protection

Wall J applied the principle from BB v Khayyat [2025] EWHC 443 (KB): QOCS protection is determined by reference to each claimant’s specific claims. Despite sharing a claim form with his wife’s personal injury claim, Mr Searson received no protection because he made no personal injury claim himself.

The court rejected arguments that claims could be “so bound up” as to extend QOCS protection by association – a position “sensibly abandoned” at the hearing.

Mrs Searson | The Mixed Claim Evaluation

For Mrs Searson, the court:

  • Correctly identified her claim as mixed under CPR 44.16
  • Conducted the required evaluation of how proceedings were actually conducted
  • Determined 50% protection appropriately reflected that “the majority of the trial was taken up with the determination of the lawfulness of her detention and not an assessment of her pleaded injuries”

Wall J emphasised the discretionary nature of costs orders, stating he would only interfere if the decision was one the judge “could not properly have come to.”

Key Principles for Costs Practice

Individual Assessment on Joint Claims

The decision confirms that:

  • Each claimant must be assessed individually for QOCS protection
  • Using the same claim form provides no costs protection advantages
  • “Protection by association” is not available even between spouses
  • Each claimant’s costs liability is determined separately

Mixed Claims | The Practical Evaluation

When assessing mixed claims under CPR 44.16, courts consider:

  • How trial time was actually allocated, not just the pleadings
  • The relative focus on personal injury versus other claims
  • What damages would have been recoverable without the personal injury element
  • The practical conduct of proceedings

The Discretionary Threshold

Wall J’s approach reinforces that:

  • Partial QOCS protection is a realistic outcome in mixed claims
  • Courts have wide discretion in determining protection levels
  • Appeals face a high threshold – the decision must be one the judge “could not properly have come to”

Practical Implications

This decision provides valuable guidance for costs practitioners handling multi-claimant cases:

Strategic considerations: When advising multiple claimants, practitioners must assess each client’s position individually. The inclusion of personal injury claims by one claimant provides no costs protection for others, even family members on the same claim form.

Mixed claims evaluation: The reality of trial conduct matters more than pleaded claims. Where substantial trial time addresses non-personal injury issues, expect reduced QOCS protection even where personal injury is pleaded.

Client advice: Practitioners must ensure clients understand that partial success may still result in significant costs exposure. Here, proving unlawful detention attracted nominal damages of £1 while exposing Mrs Searson to 50% of the defendant’s costs.

Procedural efficiency: Using a single claim form for multiple claimants offers no costs protection advantages and may complicate costs assessments where different protection levels apply.

The Broader Costs Context

This case reinforces developing jurisprudence on mixed claims and QOCS protection. It confirms courts will take a granular approach, examining:

  • The actual conduct of proceedings
  • The substantive focus of trial time
  • The true nature of claims pursued

The decision sits comfortably alongside BB v Khayyat in confirming that QOCS protection cannot be shared between claimants based on procedural convenience or personal relationships.

Conclusion

Searson provides clear guidance on individualised QOCS assessment in multi-claimant cases. The contrasting costs orders – full exposure for one claimant, 50% protection for another – demonstrate the importance of careful claim formulation and client advice about costs risks.

For costs practitioners, the case reinforces that strategic decisions about including non-personal injury claims alongside personal injury claims require careful cost-benefit analysis. The nominal damages award despite proving unlawful detention serves as a reminder that procedural victories don’t necessarily translate into costs protection where QOCS is limited or unavailable.

The decision confirms that courts will maintain a principled, individualised approach to QOCS protection, looking beyond claim forms to the substance of what each claimant actually pursues at trial.

Probate Costs Recoverable Where Grant Obtained Exclusively For Litigation

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Background

These proceedings concerned the assessment of costs arising from the British Steel Coke Oven Workers Litigation, a substantial body of claims brought by workers (or their estates) against Tata Steel UK Ltd and its predecessors. The claims, which began in 2012, related to respiratory diseases and skin cancer allegedly caused by exposure to emissions at coke oven plants. Following an application in 2015, a Group Litigation Order was made in 2017 by Senior Master Fontaine.

The litigation involved over 200 claimants represented by two firms of solicitors – Hugh James and Irwin Mitchell – in roughly a 3:1 proportion. The GLO proceedings continued until 2022, when an order was made for the claimants to pursue their claims through an agreed scheme. All claims were concluded by 2024 for an aggregate sum of approximately £3.5 million.

The common costs up to the implementation of the scheme had been agreed at £8.5 million, with further common costs from 2022 to 2024 remaining unresolved. To address the individual costs of claimants efficiently, the parties selected 20 sample claimants (12 from Hugh James and 8 from Irwin Mitchell) with the intention that court decisions on these cases could be extrapolated to all claimants. Based on the sample bills, the defendant calculated that individual costs across all claimants might total £8 million.

On 7 February 2025, the court made directions for the determination of four preliminary issues, with provision for detailed line-by-line assessment of four sample bills at a later date. The hearing of the preliminary issues took place over three days in April 2025 before Senior Costs Judge Rowley.

Costs Issues Before the Court

The court was required to determine four preliminary issues agreed between the parties:

    • First, the appropriate hourly rates for the solicitors’ work on individual costs. Both firms claimed identical rates that remained unchanged throughout the 12-year period of the litigation, with Grade A at £315, Grade B at £278, Grade C at £233, and Grade D at £147. The defendant offered significantly lower rates of £261, £218, £178, and £126 respectively.
    • Second, the recoverability of costs for obtaining evidence from co-workers. This issue arose particularly in Hugh James bills, where substantial time was claimed for taking witness statements from colleagues of the claimants. The defendant initially challenged whether such work constituted individual costs or common costs (which had already been agreed), before shifting to argue about the extent rather than the principle of such work.
    • Third, the recoverability of probate costs. Approximately half the test cases included claims for obtaining grants of probate or letters of administration, with profit costs ranging from nil to just under £2,000 and disbursements from £10 to £655. The defendant challenged whether these costs were properly recoverable in the litigation.
    • Fourth, the recoverability of items claimed as “MailMerge” by Hugh James. These comprised 223 items totalling 22.2 hours across the 12 Hugh James claimants. The defendant contended these represented automated correspondence that should be treated as common costs.

Additionally, the court was asked to consider the proper categorisation of costs as individual or common costs, as defined in the GLO. Individual costs were those “incurred in respect of any individual claimant in relation to matters which are personal to that claimant”, whilst common costs were “all costs other than Individual Costs”.

The Parties’ Positions

On hourly rates, the claimants argued that the rates claimed were justified by reference to the seven factors in CPR 44.4. They emphasised the complexity of longtail industrial disease litigation, the specialist expertise required, and the value of the claims (averaging £87,000 on their calculation). They relied on Master McCloud’s 2019 summary assessment where similar rates had been allowed. The claimants also criticised the defendant’s conduct in requiring individual proof of each claim despite the GLO framework.

The defendant contended for lower rates based on the 2021 Guideline Hourly Rates, arguing these already incorporated an enhancement from the 2010 rates. They emphasised that the 2022 scheme had streamlined the claims process, reducing complexity. The defendant argued that the global settlement value of £3.5 million (with individual claims ranging from £3,700 to £31,000) indicated lower value claims requiring lower rates. They also suggested that common costs work might justify higher rates than individual costs work.

Regarding co-worker evidence, the claimants maintained that witness statements were necessary to prove individual claims, particularly for the 15 deceased workers among the 20 sample cases. They argued that the defendant’s own position, as expressed in Matthew Harrington’s witness statement, required individual proof of exposure for each claimant, making co-worker evidence essential for individual costs.

The defendant’s position evolved from initially challenging all co-worker evidence as common costs to accepting the principle but questioning the extent. They argued that general evidence about plant conditions should be treated as common rather than individual costs, particularly given the disparity between Hugh James and Irwin Mitchell’s approaches.

On probate costs, the claimants argued that where grants were obtained exclusively for litigation purposes, the reasonable costs were recoverable. They provided witness evidence detailing estate sizes and explaining why grants would not otherwise have been required. The defendant relied on Mosson v Spousal (London) Ltd, arguing that probate costs could not be recovered as damages and questioning how claimants could prove grants were obtained exclusively for litigation.

For MailMerge items, Hugh James explained these were not fully automated letters but required individual “topping and tailing”. They claimed these at 2 minutes per item rather than the standard 6 minutes for routine correspondence. The defendant maintained these were archetypal common costs, being standardised correspondence to groups of claimants using Microsoft Word’s mail merge feature.

The Court’s Decision

Senior Costs Judge Rowley allowed the hourly rates as claimed. He rejected the defendant’s argument that the 2022 scheme had simplified these cases, finding that claimants still needed to prove duty, breach, and causation individually. The judge concluded that “these claims were no different from claims which were regularly brought by firms instructed by trades unions against large manufacturing employers on behalf of their individual members.”

The judge found no justification for different rates between common and individual costs work, noting that the defendant’s own solicitors charged the same rates for both types of work. He considered the claims to have “all the complexity of longtail disease litigation” and that the specialist expertise of Grade C and D fee earners who conducted most of the work justified the rates claimed.

On co-worker evidence, the judge found entirely in favour of the claimants. He held that evidence supporting deceased claimants’ cases was properly categorised as individual costs, even if it might have secondary benefits for other claims. The judge stated: “The primary purpose of the evidence was to provide sufficient information for the individual claimant to be able to establish the breach of duty and the damage caused. That should be sufficient for it to be claimed as individual costs.”

The judge rejected any attempt to apportion co-worker evidence between individual and common costs, finding such division would be impractical and inappropriate. He specifically referenced the example of David Ferris’s witness statement, which was originally produced for his own claim but later amended to support another estate’s claim, illustrating the difficulty of any meaningful apportionment.

Regarding probate costs, the judge established that these were recoverable where grants were obtained for litigation purposes. He set a relatively low evidential threshold, stating: “If the personal representative or administrator attended court on the assessment of their costs, it would require no more than their confirmation that the grant had been obtained for the litigation for the costs of so doing to be allowed in principle.” The detailed witness evidence provided by the solicitors was found more than sufficient to establish these claims.

On the MailMerge issue, the judge accepted Hugh James’s explanation that these were not fully automated letters. He approved the two-minute charging approach, previously endorsed by Nelson J in Giambrone v JMC Holidays Ltd, as “a reasonable approach to picking up the time on the individual case without claiming full routine letters.” This allowed recovery as individual costs whilst recognising the partially standardised nature of the correspondence.

The judge declined to make definitive rulings on the specific categorisation challenges in the Bennett and Dawson cases, providing only provisional indications given the limited submissions made. These matters were left for determination at the subsequent detailed assessment hearings.

Credit Hire Companies Liable For Costs As Real Parties Under QOCS Exception

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Background

These consolidated appeals concerned two road traffic accident cases where claimants had entered into credit hire agreements and subsequently brought proceedings that included claims for personal injury and credit hire charges. In both cases, the claims failed and costs orders were made in favour of the defendants. However, due to the operation of Qualified One-Way Costs Shifting (QOCS), these costs orders could not be enforced against the claimants. The defendants then sought non-party costs orders against the respective credit hire companies.

In the first case, Tescher v Direct Accident Management Limited, a motorcycle accident occurred on 19 November 2018. The claimant entered into credit hire agreements with Direct Accident Management Limited (DAML) and brought proceedings through solicitors Bond Turner. The claim included damages for personal injury and special damages of over £22,000, of which £19,633.36 related to credit hire charges for 88 days. The claimant pleaded impecuniosity. District Judge Swan dismissed the claim on 8 December 2022 and ordered the claimant to pay the defendant’s costs, subject to QOCS protection. The judge directed DAML be joined as a second defendant for costs purposes.

District Judge Jeffs subsequently heard the defendant’s application for a non-party costs order on 10 May 2023. Evidence was filed including documents showing DAML and Bond Turner were part of the Anexo group, which described itself as focused on providing replacement vehicles and legal services to impecunious customers involved in non-fault accidents. DJ Jeffs dismissed the application, finding DAML was not the “real party” and that causation had not been established. Permission to appeal was granted and the matter was transferred to the Court of Appeal.

In the second case, AXA Insurance v Spectra, an accident occurred on 23 October 2019 resulting in the claimant’s vehicle being written off. The claimant entered into a credit hire agreement with Spectra Drive Limited on the day of the accident. Liability was admitted on 28 October 2019, but the hire continued for 89 days. Proceedings were commenced against AXA Insurance under the European Communities (Rights against Insurers) Regulations 2002, claiming general damages for personal injury (unlikely to exceed £3,800) and special damages of £16,160.94, predominantly credit hire charges.

AXA made a Part 36 offer of £2,750 for the personal injury claim only on 18 November 2020. On 25 May 2021, AXA’s solicitors highlighted that the claimant had insured another vehicle within 10 days of the accident and threatened to plead fundamental dishonesty. The claimant discontinued on 28 May 2021, resulting in the usual costs order under CPR r38.6(1), subject to QOCS.

AXA applied for two orders: setting aside QOCS protection on grounds of fundamental dishonesty and a non-party costs order against Spectra. Deputy District Judge Carson found no fundamental dishonesty but initially awarded 65% of AXA’s costs (£3,432) against Spectra. On appeal, HHJ Gargan overturned various findings and refused the non-party costs order, noting AXA’s “good fortune in escaping a judgment and costs” as a factor against making such an order. He suggested general guidance would be welcome given the frequency of credit hire cases.

Costs Issues Before the Court

The central issue before the Court of Appeal was whether and in what circumstances non-party costs orders should be made against credit hire companies when credit hire cases fail and the claimant is protected by QOCS. This required the court to consider the interaction between the QOCS regime introduced in 2013 and the established principles governing non-party costs orders under section 51 of the Senior Courts Act 1981.

The court needed to determine whether credit hire companies could be characterised as “real parties” to the litigation or persons for whose financial benefit claims were made within the meaning of CPR r44.16(2)(a). This rule provides an exception to QOCS where proceedings include a claim made for the financial benefit of a person other than the claimant, and r44.16(3) expressly contemplates non-party costs orders in such circumstances.

A crucial subsidiary issue was causation – whether the credit hire companies’ involvement had caused the defendants to incur costs they would not otherwise have incurred. This included examining the nature and extent of control exercised by credit hire companies over litigation and whether a strict “but for” test applied.

The court also had to consider the proper approach to exercising discretion when the jurisdiction for non-party costs orders was engaged, including questions of attribution between different elements of mixed claims (personal injury and credit hire) and what proportion of costs should be ordered against the credit hire company.

The Parties’ Positions

The appellants (the defendants in the original proceedings) contended that non-party costs orders should have been made against both credit hire companies. They argued that the credit hire companies were the real beneficiaries of the litigation relating to hire charges and exercised sufficient control over the proceedings through the structure of their agreements. They submitted that the inevitability of litigation flowing from credit hire agreements with impecunious claimants satisfied the causation requirement.

The appellants relied on Farrell v Birmingham City Council [2009] EWCA Civ 769, where a non-party costs order was made against a credit hire company, arguing this established the principle in the credit hire context. They contended that Lord Mustill’s observation in Giles v Thompson [1994] AC 142 about “healthy discipline” through costs orders supported their position. They also argued that CPR r44.16(2)(a) and Practice Direction 44 paragraph 12.2 specifically identified credit hire as an example of claims made for another’s financial benefit.

Regarding the Spectra case specifically, the appellants submitted the judge erred in relying on AXA’s “good fortune” in obtaining a costs order following discontinuance, citing Nelson’s Yard Management Company v Eziefula [2013] EWCA Civ 235 that potential success at trial does not justify departing from the usual costs consequences of discontinuance.

The respondent credit hire companies argued that credit hire claims were legitimate claims by claimants, validated by Giles v Thompson and Lagden v O’Connor [2003] UKHL 64. They contended they were not the “real party” as they had no direct right to damages and the claimant retained a genuine legal liability for hire charges. They submitted that any benefit they derived was consequential rather than direct.

The respondents argued there was no principled distinction between credit hire companies and solicitors acting on conditional fee agreements, neither of whom face non-party costs orders in ordinary circumstances. They challenged Practice Direction 44 paragraph 12.2 as wrong and without legislative force. On causation, they argued for a strict “but for” test, submitting the defendants would have incurred similar costs defending the personal injury claims regardless of the credit hire element.

In the Spectra case, the Respondent’s Notice challenged the judge’s findings that Spectra was the principal beneficiary and primary cause of the litigation, arguing these conclusions were incorrect even without the “good fortune” point.

The Court’s Decision

The Court of Appeal allowed both appeals and made non-party costs orders against the credit hire companies. Lord Justice Birss, giving the leading judgment, established comprehensive guidance for future cases involving non-party costs applications against credit hire companies in the QOCS context.

The court held that credit hire companies in these circumstances satisfy the “real party in all but name” test. The essential characteristics of credit hire agreements – hire on credit with payment deferred until conclusion of damages claims – combined with claimants’ alleged impecuniosity made litigation inevitable for all practical purposes. The court found this created sufficient control over the litigation and established the necessary causation, as litigation was the only realistic means by which credit hire companies would be paid.

On the interpretation of CPR r44.16(2)(a), the court confirmed that credit hire claims are made for the financial benefit of a person other than the claimant. While QOCS was introduced to protect claimants in personal injury claims, it was not intended to protect non-parties for whose financial benefit claims were made. The court noted that r44.16(3) expressly contemplates non-party costs orders in these circumstances.

The court rejected the respondents’ analogy with solicitors acting on CFAs, distinguishing that solicitors are not the genesis of claims, their fees are not the subject of claims, and CFAs do not bind claimants to pursue claims. Credit hire companies, by contrast, were found to be the real beneficiaries of litigation for hire charge damages through the structure of their agreements.

Regarding causation, the court rejected a strict “but for” test, holding that the inevitability of litigation flowing from the credit hire agreement structure was sufficient. The court stated it was unnecessary to consider whether costs would be higher without the credit hire element, as such questions were better addressed at the stage of determining quantum.

The court proposed a two-stage approach for future cases: first, determining whether the non-party costs jurisdiction is engaged, and second, deciding the appropriate amount. Where credit hire claims are several times larger than personal injury claims, an order for all costs would likely be appropriate absent special circumstances.

In the DAML case, the court found the judge’s conclusions on the “real party” test and causation were incorrect. The court ordered DAML to pay all the defendant’s costs, given the credit hire charges were several times larger than the personal injury damages.

In the Spectra case, the court dismissed the Respondent’s Notice and found the judge correctly identified Spectra as the principal beneficiary. However, the judge’s reliance on AXA’s “good fortune” was held to be an error. The court reinstated the Deputy District Judge’s original order requiring Spectra to pay 65% of AXA’s costs.

The court emphasised that PD 44 paragraph 12.5(a) provides that when r44.16(2)(a) applies, courts will usually order the other person to pay costs, while it will only be exceptional to permit enforcement against the claimant. This guidance aligned with the court’s analysis that non-party costs orders against credit hire companies would be likely absent special circumstances.

Pushing By Vulnerable Adult Found Not To Constitute “Intentional Harm” Under Para 4.3(8) EL/PL Protocol | However, Claim Escapes On Valuation At Time Of Letter of Claim

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Background

This case involves Julie Johnson (the Claimant) and her former employer Choice Support (the Defendant). The Claimant had worked with the Defendant for five years, providing care to elderly patients with complex needs. One patient, referred to as “E,” required regular management of his catheter bag.

On 25 December 2018, the Claimant was crouching to empty E’s catheter bag because the stool normally used for this task had broken two days earlier and hadn’t been replaced. E pushed the Claimant, causing immediate back pain. Though she initially recovered, she later developed foot drop (confirmed by MRI), leading to medical treatment and cancellation of a planned holiday. Growing concerns about her long-term health and ability to work safely ultimately led her to pursue a personal injury claim.

The procedural timeline included extensive document exchanges between parties, with the Claimant’s solicitors submitting a Letter of Claim on 14 October 2019, setting the stage for the costs issues. The Defendant raised Points of Dispute on 22 November 2022, challenging the application of the Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims (“the Protocol”). The detailed assessment hearing took place on 26 February 2025, with judgment issued on 28 April 2025.

Costs Issues Before the Court

The court addressed specific costs issues regarding the Protocol’s applicability:

  1. Whether the claim’s estimated value exceeded the Protocol’s limit
  2. Whether the case involved “harm, abuse or neglect of or by children or vulnerable adults,” explicitly excluded from the Protocol under paragraph 4.3(8)

The Parties’ Positions

The Claimant contended that her solicitors reasonably assessed the claim’s value between £11,730 and £26,050 at the time of the Letter of Claim, placing it outside the Protocol’s limit. This assessment considered her worsening symptoms, potential ongoing medical requirements, and possible future earnings loss.

The Defendant argued that the Claimant’s solicitors had overestimated the claim’s value. They further maintained that although E was clearly a vulnerable adult, the incident didn’t constitute “harm, abuse, or neglect” under paragraph 4.3(8). Drawing on multiple authorities, they emphasized that E’s pushing wasn’t intended to cause injury, nor did E understand that his actions could result in harm.

The Court’s Decision

Deputy Costs Judge Erwin-Jones addressed both contested points.

Regarding claim valuation, the Judge determined that based on evidence available when the Letter of Claim was sent, the Claimant’s solicitors reasonably estimated general damages within the moderate bracket for back injuries (£11,730 to £26,050). Given the Claimant’s persistent symptoms and concerns about future work capacity, the valuation appropriately included potential earnings loss and related costs. The court therefore found it reasonable that the estimated claim exceeded the Protocol limits.

On the paragraph 4.3(8) issue, while acknowledging E was undoubtedly a vulnerable adult, the court found his actions did not constitute “harm, abuse or neglect” as interpreted in previous cases including Lawal v London Borough of Southwark. E’s pushing was a known risk managed through the provision of a stool, and no evidence suggested E possessed awareness or intention to cause harm.

Consequently, the court found that there was an absence of harm, abuse or neglect of or by the vulnerable adult and so, were it not for the reasonably assessed value of the case at the time the Protocol would have applied.

No Deviation From ‘Costs Follow The Event’ Following s68(1) Application Where Solicitor Failed To Respond To Multiple Requests For Final Statute Bill

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Background

On 15 November 2018, the claimant, Mr Jonathan Franklin, sustained personal injuries at work and subsequently instructed the defendant, Your Lawyers Limited, to act on his behalf. The claim was successfully settled on 14 December 2020. However, the defendant did not provide a final invoice regarding the costs incurred in bringing the claim. Consequently, the claimant sought legal advice from Mr James Green of JG Solicitors to review the sums charged by the defendant.

On 14 August 2024, Mr Green requested a Final Statute Bill from the defendant, providing an authority document with an electronic signature. The defendant, represented by senior manager Mr Matthew Plemper, requested a handwritten signature. This revised authority was signed and sent by the claimant on 10 September 2024. Despite this, there was no response from the defendant, prompting Mr Green to send a follow-up letter on 15 October 2024. This letter indicated that if the bill was not delivered by 22 October 2024, a Part 8 application pursuant to s68(1) of the Solicitors Act 1974 would be made.

With no response received, the claimant initiated the Part 8 application on 30 October 2024. The Final Statute Bill was eventually delivered by the defendant on 10 December 2024.

The case was initially listed for a directions hearing on 6 January 2025, which was subsequently relisted to 4 February 2025 and then to 20 March 2025, where counsel took over two hours for their submissions, necessitating a reserved judgment.

Costs Issues Before the Court

The court under CPR 44.2 was required to exercise its discretion regarding the award of costs. According to the general rule, “costs follow the event,” implying that the unsuccessful party pays the successful party’s costs. However, the court could make a different order based on the conduct of the parties. The claimant argued for costs to follow the event, whilst the defendant contended for a different order due to purported conduct issues by the claimant.

The Parties’ Positions

Mr Mason, representing the defendant, argued that the claimant’s conduct, prior to and post-commencement of proceedings, warranted a deviation from the general rule. He divided his submissions into three categories:

Pre-Action Conduct:
Mr Mason contended the claimant failed to comply with the Practice Direction – Pre-Action Conduct and Protocols, suggesting the claimant did not indicate that litigation would ensue if requests were ignored.

Commencement of Proceedings:
The defendant claimed that proceedings were initiated as a first resort, contrasting with the solicitation for a “wet ink” signature taking more than a week after signature to be dispatched.

Pursuit of Costs:
Mr Mason suggested that the claimant aimed to pursue costs through litigation rather than genuinely seeking a final statute bill.

Mr Simpson, for the claimant, countered by highlighting that the delays and lack of responses from the defendant justified the commencement of proceedings. He argued the claimant’s attempts to communicate efficiently, and the rational deadlines imposed were in line with typical expectations.

The Court’s Decision

Acting Senior Costs Judge Rowley ruled that the claimant’s conduct was reasonable and did not warrant any deviation from the standard rule that costs follow the event. Judge Rowley pointed out significant points:

Pre-Action Protocol Compliance:
The judge noted that the claimant’s polite and structured correspondence, including the seven-day warning, was sufficient and justified given the defendant’s lack of response. The absence of substantive replies from the defendant did not negate the potential for litigation.

Response Timeliness:
Based on prior evidence from the defendant’s similar case history, it was reasonable to expect that a final statute bill should have been produced within a short timeframe, not the 77 days it eventually took.

Post-Commencement Conduct:
The judge observed that the defendant’s failure to provide clarification during the proceedings, coupled with an uncommunicative approach, did not justify a conduct-based cost order against the claimant.

Given these findings, Acting Senior Costs Judge Rowley concluded that the claimant’s conduct, both before and after the commencement of proceedings, was reasonable and did not exhibit any behaviour warranting a costs penalty. Consequently, he awarded the costs to the claimant, assessing them on the standard basis.

Allocation to Multi-Track Automatically Disapplies Fixed Costs Regime, Enabling Standard Basis Cost Assessment for Part 36 Offer Acceptance

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Background

On 11 April 2025, Mrs Justice Stacey delivered a judgment in the High Court of Justice, King’s Bench Division regarding an appeal in the case of Miss Laura Attersley v. UK Insurance Limited (2025 EWHC 884 (KB)). The appellant, Miss Laura Attersley, initially brought a claim for damages in the tort of negligence following a road traffic accident, and the respondent was UK Insurance Limited, the insurer of the other driver involved.

The claim began under the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (RTA Protocol), but subsequently exited it at the defendant’s request. The claimant issued Part 7 proceedings claiming up to £150,000 damages and, later, accepted a Part 36 offer from the defendant for £45,000 after the claim had been allocated to the multi-track. The principal matter on appeal was the determination of whether the claimant was entitled to fixed costs or costs assessed on the standard basis up until the point of the expiry of the relevant period of the Part 36 offer accepted late.

The procedural history began on 9 March 2018 when the claimant was involved in a road traffic accident in Southend on Sea, Essex. Ten days later, on 19 March 2018, the claimant’s solicitors submitted a Claim Notification Form (RTA1) under the RTA Protocol. The defendant requested the claim exit the RTA Protocol on 9 April 2018 due to disputed liability. Subsequently, on 29 April 2019, liability was admitted by the defendant. On 12 February 2021, the claimant issued Part 7 proceedings with the particulars of claim dated 13 January 2021, escalating the damages claimed to up to £150,000 based on ongoing physical and psychological issues, supported by medical reports.

The claim was allocated to the multi-track on 5 January 2022, and the trial was scheduled, with extensive expert evidence anticipated. Nearly a year later, on 8 July 2022, the claimant accepted the defendant’s Part 36 offer of £45,000. A subsequent dispute arose regarding the costs consequences of this late acceptance, ultimately leading to the appeal heard on 14 October 2024.

Costs Issues Before the Court

The core issue before the High Court was the costs implications arising from the claimant’s late acceptance of the Part 36 offer. Specifically, the court needed to determine whether the claimant was entitled to her reasonable costs assessed on the standard basis up to the expiry of the Part 36 offer, or whether she was restricted to fixed costs up to that date, pursuant to CPR 36.20 as it was then in force.

Central to the issue was the interplay between CPR 45.29B, which pertains to fixed costs under Section IIIA of Part 45 for cases that have exited the RTA Protocol and not been allocated to the multi-track, and Part 36.20, which encompasses costs consequences of accepting a Part 36 offer for such cases. The contention primarily revolved around whether the rule amendments following Qader v Esure [2017] removed the application of the fixed costs regime upon allocation to the multi-track, thus entitling the claimant to costs assessed on the standard basis.

The Parties’ Positions

The claimant argued that, under CPR 45.29B, the fixed costs regime ceased to apply once the case was allocated to the multi-track, implying she was entitled to costs assessed on the standard basis as per CPR 36.13. Relying on Qader v Esure, she contended that the rule amendment intended to disapply fixed costs retrospectively upon multi-track allocation.

On the other hand, the defendant maintained that the claimant was only entitled to fixed costs until the Part 36 offer acceptance deadline per CPR 36.20. They argued that this interpretation was necessary to prevent an absurd outcome where claimants could benefit disproportionately from late offer acceptances and to uphold the overarching legislative intention to encourage early settlement and cost proportionality.

The Court’s Decision

Mrs Justice Stacey reviewed the statutory provisions and case law to ascertain the proper interpretation of the conflicting CPR rules. The judgment emphasised that the intention behind the CPR amendments following Qader was explicit in disapplying the fixed costs regime upon allocation to the multi-track. The court noted that this applied retrospectively, provided there had been a judicial determination for allocation to the multi-track.

Therefore, the court held that CPR 36.20 did not apply where a case had been allocated to the multi-track. Consequently, the claimant was entitled to her reasonable costs on the standard basis up to the expiry of the relevant period of the Part 36 offer, thereby overturning the lower court’s ruling that limited her to fixed costs.

The appeal was allowed, and the claimant’s costs up to the Part 36 offer expiry were to be assessed based on the standard basis under Part 44 principles. This outcome aligned with the statutory intention of CPR amendments and provided clarity on the costs implications in multi-track allocations.

Interpreter’s Fee Of £924 Deemed Recoverable Under The RTA Protocol But Disproportionate To £20,000 Settlement | Reduced To £794.40

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This case involved a determination regarding the quantum of a specific disbursement in the claim between Raphael De Lima Santiago (the Claimant) and the Motor Insurance Bureau (the Defendant). The procedural journey began when the Claimant, a Brazilian national whose first language is Portuguese, was involved in a road traffic accident on 22 May 2018 while working as a delivery driver in London. The accident, involving a Honda motorcycle driven by him and a scooter driven by Mr Joshua Odubolo, led to the motorcycle being deemed uneconomical to repair. Subsequently, the Claimant’s legal action included a claim for the cost of hiring a replacement motorcycle, amounting to over £46,000. The claim was initiated through the Road Traffic Accident (RTA) Protocol and filed at the County Court Money Claims Centre on 17 May 2021, a day before the expiration of the limitation period. Mr Odubolo did not mount a defense, leading to the Motor Insurers’ Bureau (MIB) being involved as a second defendant due to uncertainties regarding Mr Odubolo’s insurance status. The claim proceeded to trial at the County Court after being allocated to the Fast Track. The Claimant’s witness statement, originally in Portuguese, was translated into English by Bond Turner Solicitors, who also booked an independent interpreter for trial compliance. This direction was necessitated by the court’s conditions, precluding the use of internal translators from the Claimant’s solicitors at trial. On the day of trial, 11 August 2022, the case settled, with the MIB agreeing to pay £20,000 and the Claimant’s costs summarily assessed at £13,746.03. However, the Deputy District Judge Sneddon excluded the Interpreter’s Fee, citing CPR 45.29I(h) and relying on the Court of Appeal’s decision in Cham (A Child) v Aldred. Permission to appeal was granted, leading the matter to the Court of Appeal, which focused on the interpreter’s fee recoverability as a necessary disbursement due to the access to justice principle outlined in the overriding objective and Practice Direction 1A. The Court of Appeal, in its decision dated 14 July 2023, remitted the case for further determination of the reasonableness and proportionality of the interpreter’s fee quantified at £924. The court’s directions included guidelines for the defendant to challenge the fee if necessary within a given timeframe. The case was remitted to the court court and came before HHJ Dight CBE on 6 September 2024. Judgment was handed down on 21 February 2025.

Costs Issues Before the Court

The primary costs issue before the court was the assessment of the interpreter’s fee under CPR 45.29I(h). Following a remittance by the Court of Appeal to consider this disbursement, the central question was whether the fee for instructing an interpreter at the trial of the claim, claimed at £924 including VAT, was proportionate and reasonable. The Defendant’s contention included an alleged failure by the Claimant to provide a breakdown of the fee, suggesting the court either assess the fee at nil or reduce it to £300, drawing on the market rate for such services. The considerations also involved whether any part of the fee constituted an irrecoverable agency element, and if so, the impact of such an element on the recoverability of the total fee.

The Parties’ Positions

The Claimant, represented by Ben Williams KC, maintained that the interpreter’s fee, although involving an intermediary service provider, was a reasonable and proportionate fee within market standards. They argued that the booking was necessitated by the professional service context, and thus, a higher fee encompassing operational costs of the service provider was inevitable. The Claimant supplied comparable market quotations to substantiate their position, indicating the fee fell within a typical range and emphasising that any reduction should still recognise a reasonable market cost. Contrarily, the Defendant, through Robert Marven KC, contended the fee was unreasonably inflated and included an agency component that should not be recoverable under CPR 45.29I(h), referencing Crane v Canons Leisure Centre. They stressed the need for transparency, urging the court to compel disclosure of the fee breakdown, and argued for a reduction to a minimal sum of £300, aligned with direct bookings from public registers of interpreters at standard flat rates.

The Court’s Decision

His Hon Judge Dight CBE held that the interpreter’s fee was indeed a recoverable disbursement under CPR 45.29I(h). The Judge, after a meticulous analysis, rejected the argument that the fee should include an irrecoverable agency component when sourced through an intermediary. It was acknowledged that market practices for obtaining professional services often involve such intermediary costs, and the fee should be judged against prevailing market rates. The Court referenced the competitive market context for such services, drawing on data provided by the Claimant’s costs draftsman, Mr Neil Ryder, which showed a reasonable range of fees from similar service providers. The decision also took into account the proportionality rule under CPR 44.3, considering the entirety of the claim. The Judge held that the £924 fee was at the high end of the market range and was not proportionate to the claim’s settlement value and should be adjusted. Consequently, he determined an adjusted reasonable fee would be £662 plus VAT, totalling £794.40, thereby ensuring the fee was fair, reasonable and aligned with the proportionality bounds in relation to the claim’s overall value.