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No Advocacy, then no Advocate’s Fee in fixed Recoverable Costs Cases - Elaine Pitt, Keoghs

24/07/18. Jean Crawshaw v Alfred Dunhill Limited

County Court Sheffield, 16 November 2017 before District Judge Bellamy

Background

Whilst attending a golf tournament, the claimant tripped over unmarked cables and sustained injury. A claim was intimated against the organiser of the event and it became necessary to issue a pre-action disclosure application. In the event, the documentation was disclosed and so the application was resolved without the need for a hearing.

Upon settlement of the claim, an issue arose as to the appropriate costs of the PAD application.

The Issue

The Court of Appeal had already determined in Sharp v Leeds City Council [2017] EWCA Civ 33 that the fixed costs regime applies to PAD applications and so Type A/B costs at Table 6 applied. The issue was whether the claimant was entitled to recover “advocates costs” where no advocacy had been required.

The Rules

CPR 45.29H (1) provides that the fixed costs of an interim application shall be for a sum equivalent to one half of the applicable Type A and Type B costs in Table 6 or 6A, which costs are defined at CPR 45.18(2):

Type A costs are the legal representative’s costs and are fixed at £250

Type B costs are the advocate’s costs and are fixed at £250

The term “advocate” is defined at CPR 45.18(3) as “a person exercising a right of audience as a representative of, or on behalf of, a party”.

Outcome

The court found that, there having been no advocacy, there was no entitlement to an advocate’s costs. The court agreed with the defendant’s submissions that:

  • The word “applicable” in CPR 45.29H(1) would not be needed if the rules intended A and B costs to be recoverable in every case.

  • The rules would simply provide for one fixed fee to cover all applications if that was the intention.

  • Legal Representative’s costs and Advocate’s costs have been intentionally separated

  • In Sharp – referred to above – the Court of Appeal awarded only Type A costs in identical circumstances

  • The separation of legal representative’s and advocate’s costs incentivises parties to settle – were there not a reduced cost attached to doing so, there would be no such incentive.

Comment

This commonsense decision saw an end to claimants seeking to rely on an earlier and much publicised (and much criticised) decision in Skowron v Rollers Roller Disco, where Type A and B costs were awarded in these circumstances.

Elaine Pitt
Keoghs

Image cc flickr.com/photos/jurvetson/5314774452