Is a Counsel fee recoverable in a fixed costs dispute under CPR 45.29I (2) (C ).

The recoverability of Counsel fees has been a hot topic amongst Claimant and Defendant’s costs practitioners especially in the context of claims that are subject to the application of the Fixed Costs regime. The decision of Aldred v Cham, was a massive blow to Claimant’s Solicitors and effectively swayed the pendulum in favour of paying parties as far as Counsel’s fees were concerned.

The recent High Court decision of Finsbury Food Group PLC v Scott Dove, the Court were once again asked to consider and clarify the position when it comes to the recoverability of Counsel fees, especially in situations in which the advice is in relation to quantum.

The facts of the matter were as follows: The Claimant sustained an injury to his hand during the course of his employment which subsequently led to the Claimant undergoing multiple surgeries and was absent from work for approximately three months. Initially, the claim was valued at less than the Protocol upper limit of £25,000.00, consequently, the Claimant’s Solicitors submitted the claim to the Portal in 2015. The Defendant failed to respond within the 30 days and as a result, the claim fell off the Portal regime and exited the Protocol for low value employer’s liability claims.

The Defendant after repeated requests for the Claimant to re-submit the claim to the Portal finally admitted liability subject to causation. The Claimant’s Solicitors then sought advice from Counsel as to the valuation of the claim. Counsel provided the said advice in a conference with the Claimant and his Solicitors in 2017, the claim then settled for the sum of £70,000.00 which was significantly above the Protocol upper limit of £25,000.00.

Despite the settlement exceeding the Protocol upper limit, the matter was still within the remit of the fixed costs regime within CPR 45. Interestingly, if the claim had been issued and allocated to the Multi-Track then this would have taken it outside of the fixed costs regime and the traditional standard basis hourly rates costs would be the appropriate regime.

Within the Claimants Bill of Costs, a Counsel Fee of £650.00 + VAT for the advice on quantum was claimed. The Defendant initially argued that the fee was not payable once the claim exited the Portal and in the alternative the Defendant argued that the fee should be limited to the sum of £150 + VAT in line with CPR 45.23B (Table 6A), which applies to Counsel’s fees for advice in claims in which the Claimant is a child.

At first instance, the Costs Judge rejected both Defendants submissions, however, the Counsel fee was reduced to the sum of £500 + VAT. The Defendant then appealed both the award of the fee and also the amount awarded.

Master Brown sitting in the SCCO held that Part 45.23B in Table 6A was not intended to apply to claims which had exited the Protocol and thus the Counsel fees claimed by the Claimant were recoverable. In light of this, the Defendant’s appeal was dismissed, however, the Defendant was granted permission to appeal to the High Court on policy grounds as Master Brown felt that the Defendant’s argument and the Court’s subsequent decision may potentially have far reaching consequences in the field of fixed costs and recoverability of Counsel’s invoices.  

The case was then brought before Mrs Justice Lambert in the High Court to decide:

‘whether CPR 45.29I (2)(c) fixes the quantum of counsel’s (or a specialist solicitor’s) fee for advice on valuation of the claim at £150 plus VAT in accordance with CPR 45.23B (read with Table 6A) or whether the fee for such an advice falls outside the fees fixed in CPR 45 and is subject to assessment.’


Justice Lambert, after much consideration concluded that if the rule makers had intended that costs of obtaining advice from a specialist Counsel for a claim that is no longer within the Protocol to be fixed to a specific amount, then the law makers would have ensured that there was a specific provision to this effect. Consequently, Justice Lambert dismissed the Defendant’s appeal once again and upheld the first instance decision which assessed the invoice at £500.00 + VAT.

In essence, the reasonableness of the fee from Counsel for valuing the claim is dependent upon the complexity of and level of expertise needed in valuing the claim. The Costs Officer’s and Master Brown’s assessment of £500 + VAT was ruled as appropriate and thus remained in effect and the Defendants appeal was once again dismissed.

Overall, Justice Lambert’s ruling arguably demonstrated an apt and just approach to the calculation of the recoverability of Counsel’s fees in claims that have exited the Portal regime. In essence, an objective and reasonable assessment of the circumstances in which such advice was obtained will be required.

Interestingly, Master Brown also hinted that ‘if a case has a value of less than £25,000, the cost of obtaining advice from Counsel should be limited to £150 plus VAT even if the matter has left the portal’. Does this then mean that the total value of the claim is just as important in assessing the Counsel’s advice fees as the complexity of the issue at hand? Does the complexity of the advice required on quantum necessarily increase in correlation with the value of the claim itself? Master Brown’s mere permission to escalate this to the High Court is a strong indication as to the pertinence of establishing an iron-clad Precedent in the face of a vague rule and perhaps even to sheer applicability of this Precedent.

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