My beautiful reward

Well I sought gold and diamond rings
My own drug to ease the pain that living brings
Walked from the mountain to the valley floor
Searching for my beautiful reward
Searching for my beautiful reward

-Bruce Springsteen

Protected parties who suffer modestly valued personal injuries such as whiplash claims do not have to make their claims under the provisions of the various low value Protocols. But from time to time, a party who can be described as “vulnerable” will make such a claim and will find that her entitlement to costs is fixed under part 45 CPR, notwithstanding the fact that more work will need to be undertaken on her claim, or her disbursements may be higher, because for example, a medical expert may have had to make a home visit to carry out a medical examination.

In Aldred v Cham [2019] EWCA Civ 1780 Coulson LJ decided:

35. Having considered these careful judgments, I prefer the approach of HHJ Wood QC. The fact that, in a particular case, a claimant is a child, or someone who cannot speak English, or who requires an intermediary, is nothing whatever to do with the dispute itself. Age, linguistic ability and mental wellbeing are all characteristics of the claimant regardless of the dispute. They are not generated by or linked in any way to the dispute itself and cannot therefore be said to be a particular feature of that dispute.

36. The particular features of the dispute in an RTA claim will commonly be matters such as: how the accident happened, whether the defendant was to blame for the accident, the nature, scope and extent of the injuries and their consequences, and other matters of that kind. For example, the particular circumstances of the accident may be sufficiently unusual to require an accident reconstruction expert, or the injuries may be so complex that they require a number of different experts’ reports. Such additional involvement of experts may also require specific advice from counsel. Depending always on the facts, such costs may be said to be a disbursement properly incurred as a result of a particular feature of the dispute.

37. In contrast, the cost of counsel’s advice in the present case was not necessitated by any particular feature of the dispute, and was instead required because it is an almost mandatory requirement in all RTA cases where the claimant is a child. It was therefore caused by a characteristic of the claimant himself and does not fall within the exception.

38. I reach that conclusion based on the plain words of r.45.29I(2)(h). I do not derive any particular assistance in that interpretation from the similar words used in r.45.12(3)(b) and r.45.19(2)(e), in Sections II and III of Part 45, respectively. However, I do consider that my reading of these words, which would limit recoverability of sums over and above the fixed costs to disbursements due to specific features of the dispute which has arisen between the parties, is consistent with the overall purpose of the fixed recoverable costs regime, and in particular its aim of ensuring that, save for express exceptions, the amount recoverable is limited to the sums set out in the tables by way of fixed recoverable costs. I come back to that topic again, in a slightly different context, in the next section of this judgment.

That decision was concerned with rule 45.29I(2)(h).

Since that decision, the law has moved on, through amendment to the Civil Procedure Rules 1998 to specifically provide for additional costs recovery in the context of a vulnerable party. A case involving a vulnerable party is one contemplated by rule 1.6 CPR and Practice Direction 1A, which came into force on 6th April 2021.

Those rules were supplemented by a specific amendment to rule 44.3(5) which provided expressly that when assessing costs on the standard basis the court must take into account:

(f)       any additional work undertaken or expense incurred due to the vulnerability of a party or any witness

No such amendment was made to the rules on fixed costs under part 45 CPR: because no such amendment was necessary, as the court already has ample power under rule 45.29J to make an increased allowance in fixed costs cases, where additional costs are incurred by reason of the vulnerability of a witness or party.

Thus, the Civil Justice Council report which presaged the amendments, Vulnerable Witnesses and Parties within Civil Proceedings expressly considered the application of rule 45.29J in this context and stated:

232. In respect of cases falling within Sections II and IIIA (claims which no longer continue under the RTA or EL/PL pre-action protocols and claims to which the pre-action for the resolution of package claims applies), CPR 45.13 and CPR r.45.29J respectively, provide that if a court considers that there are exceptional circumstances making it appropriate to do so, it will consider a claim for an amount of costs which is greater than the fixed costs referred to in CPR 45.11 or CPR 45.29B to 45.29H. However, there is no similar provision in Section III (pre-action protocols for low value personal injury claims in road traffic accidents, employers’ liability and public liability, or in respect of fast track trial costs (the only permitted increase being an additional amount in respect of improper behaviour under CPR 45.39(8)).

233. The Council believes that the Ministry of Justice should consider whether there should be a provision within every fixed or scale costs regime for a discretion to consider a claim for an amount of costs which is greater than the fixed recoverable costs to cater for the consequences of specific, identified measures which have been necessary to cater for vulnerability.

(emphasis added)

When the court exercises a discretion under the Civil Procedure Rules it does so in accordance with the overriding objective: see rule 1.2 CPR. The court accordingly must take account of the Claimant’s position as a vulnerable party when exercising its power under rule 45.29J and as additional costs have been incurred by reason of that position, they should be recoverable.

Rule 45.29J provides:

(1) If it considers that there are exceptional circumstances making it appropriate to do so, the court will consider a claim for an amount of costs (excluding disbursements) which is greater than the fixed recoverable costs referred to in rules 45.29B to 45.29H.

(2) If the court considers such a claim to be appropriate, it may—

(a) summarily assess the costs; or

(b) make an order for the costs to be subject to detailed assessment.

(3) If the court does not consider the claim to be appropriate, it will make an order—

(a) if the claim is made by the claimant, for the fixed recoverable costs; or

(b) if the claim is made by the defendant, for a sum which has regard to, but which does not exceed the fixed recoverable costs,

and any permitted disbursements only.

Although the requirement of exceptionality is a high bar, cases involving vulnerable parties will be the exception rather than the rule, will usually require a higher expenditure in costs and in order for a vulnerable party to obtain access to justice will warrant the exercise of the discretion in a vulnerable claimant’s favour.

This is an enlightened approach. 

However, the decision in Aldred, which some might consider to have an indirectly discriminatory effect, by for example, ensuring that non English speaking litigants cannot ordinarily recover the costs of an interpreter (at least under rule 45.29I) remains good law in other contexts.

It remains to be seen when an argument will be mounted under rule 45.29J to seek to recover interpreters’ fees, sidelining Aldred, and forcing the courts to grapple with the interrelationship between the Equality Act 2010, the common law principle of construction against giving a statutory rule a discriminatory consequence and the fixed costs provisions of part 45 CPR.

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