CPR 45.29I: Disbursements in Fixed Costs

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Legal Disbursements

CPR 45 and CPR 45.29I deals with the types of disbursements that are recoverable in cases that fall under the fixed recoverable costs regime.

The amount and type of legal disbursements which are recoverable will vary based on the facts of the case and mainly on whether the case falls under the fixed costs regime or if costs are agreed to be assessed on the standard basis. For further information regarding legal disbursements, you may visit our article here.

Please note that this article relates to the CPR as they stood prior to the fixed costs reforms on 1 October 2023 as can be found here. These Rules continue to apply to all cases issued prior to 1 October 2023, or in PI cases, where the cause of action arose pre-1 October 2023.  As such references to the CPR may be different to those that currently exist in the present CPR.

We continue to assist in post-1 October 2023 fixed costs disputes, and therefore please do not hesitate to get in touch regarding the same.

Recoverable Disbursements Under CPR 45.29I

In relation to CPR 45.29I, the types and amounts of fees that are recoverable apply to claims such as Road Traffic Accident cases under the RTA Protocol, Personal Injury Claims and Employer’s Liability and Public Liability claims usually settling within the Pre-Action Protocol. Subsection 2 of CPR 45.29I allows for the following disbursements to be recovered:

· Fees incurred in relation to obtaining medical records.

· Fees in relation to non-medical expert reports.

· Court fees.

· Counsel’s fee relating to Counsel’s advice.

· Expert fees for attending Trial.

· Fees incurred in witness travelling to a hearing.

· Loss of earnings incurred for attending a hearing.

· Any other disbursement which is reasonably incurred.

Subparagraph 2A of CPR 45.29I (not to be confused with (2)(a) then goes on to set limits on the amount of fixed fee which are recoverable for certain disbursements such as a medical report in soft tissue injury claim started under the RTA Protocol only.  For the avoidance of doubt, these fixed amounts do not apply to EL/PL fixed costs cases.

Subparagraph 2B does not allow for fees to be incurred in obtaining a report where the expert has provided treatment to the Claimant:

“2B) Save in exceptional circumstances, no fee may be allowed for the cost of obtaining a report to which paragraph (2A) applies where the medical expert—

(a) has provided treatment to the claimant;

(b) is associated with any person who has provided treatment; or

(c) proposes or recommends treatment that they or an associate then provide.”

Subparagraph 2C of CPR 45.29I states the following:

“The cost of obtaining a further report from an expert not listed in paragraph (2A)(b) is not fixed, but the use of that expert and the cost must be justified.”

In relation to subparagraph 2C of CPR 45.29I, should you have the need to incur a disbursement that is not included within the fixed costs regime or within CPR 45, we suggest that you provide a quote to the opposing party with a justification of why you require the additional fee to be incurred and attempt to agree the proposed fee with the opposing party prior to incurring the same.

However, if the fee has been incurred without prior agreement with the opposing party, it may be worth attempting to agree on the fee within the Part 36 offers for settlement so that it does not become a feature of the dispute in relation to the Bill of Costs.

Nonetheless, when incurring any fee which is outside of the fixed costs regime, it is advisable to be able to justify why it has been incurred in the first place. A good justification would be that a previous expert has recommended the use of a specialist and has recommended obtaining a report from a specialist in order to address the Claimant’s damages more accurately.

Subparagraph 2D allows for VAT to be recovered in addition to the costs of obtaining a fixed costs medical report.

Finally, subparagraph 3 lists the additional disbursements which are recoverable in RTA cases that started in the RTA Protocol, namely:

“(3) In a claim started under the RTA Protocol only, the disbursements referred to in paragraph (1) are also the cost of—

(a) an engineer’s report; and

(b) a search of the records of the—

(i) Driver Vehicle Licensing Authority; and

(ii) Motor Insurance Database.”

How Can ARC Costs Assist?

ARC Costs are a team of Costs Draftsmen and Costs Lawyers who can assist you in your costs dispute. We regularly advise on disbursements incurred in fixed costs disputes, and provide advice regarding the steps which can be taken to ensure the best chance of recoverability of the fees which you have incurred in your case.

We can then assist in preparing a detailed Bill of Costs on your behalf and negotiating with the other side on the level of costs to be recovered, as well as dealing with disputes to Bills and settling Replies to those disputes depending on if you are the paying party or the receiving party.

We hold extensive experience in assisting both paying and receiving parties in their costs queries and disputes. If necessary, we can represent you throughout detailed assessment proceedings and advise you in general regarding recoverability. Should you wish to discuss your query with a costs expert, you can contact us on 01204 397302 or email a costs expert at info@arccosts.co.uk. You are also welcome to use our online query form and complete the same for a call back.

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