Fixed Recoverable Costs: Finsbury Food Group Plc v Dover

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Fixed Recoverable Costs

Claims arising from incidents after 31 July 2013 where the amount of damages falls between £1,000 to £25,000 will be subject to the Pre Action Protocol. This Protocol allows for a claim to be settled more swiftly, with short deadlines on liability decisions set. Should a claim settle within the Pre Action Protocol, fixed costs will apply.

In July 2017, Lord Justice Jackson and the government proposed an extension on the fixed costs regime. Claims for Personal Injury with a claim value of less than £25,000 were to fall under fixed recoverable costs when exiting the Portal also. These cases were subject to the general pre-action protocol rules and the fast track procedural rules. The amount of fixed costs to be recovered will be assessed based on the value of the claim.

Fixed Costs which are recoverable are set out in Part 45 of the Civil Procedure Rules. The set amounts to be recovered exclude VAT. Disbursements to be recoverable under the fixed costs regime include fees for medical reports, medical records, non-medical reports, Engineer report for RTA claims and Court fees. There is also the provision that allows for “any other disbursement that has arisen due to a particular feature of the dispute”. 

Finsbury Food Group plc v Dover [2020] Costs LR 1035

This was a case which arose due to the Claimant suffering an injury during his employment with the Defendant. The Claimant caught his hand in a bread making machine and sustained injuries to his middle and index fingers of his right hand. After surgery, the Claimant’s middle finger was damaged permanently.

The value of the claim was set at less than £25,000 initially. As such, it fell under the Pre Action Protocol for Low-Value Personal Injury claims. Within the Protocol, the Claimant was required first to submit a Claim Notification Form, and the Defendant was required to respond within 21 days. There was then an allowance made to collect evidence which was necessary in order to value the claim.

If a settlement is not reached within these two stages of the Protocol, then it falls for proceedings to be issued under CPR PD 8B. The matter can fall out of the Portal should liability not be admitted or if the Defendant fails to respond to the Claim Notification Form.

The Protocol was introduced with the fixed costs regime in line with Jackson LJ reforms. This regime makes provisions for fixed recoverable costs for claims which remain within the Protocol. Table 6A of CPR 45.18 sets out the quantum of the fixed recoverable costs. Disbursements may also be recovered in line with CPR 45.19.

In Finsbury Food Group plc v Dover [2020], the CNF was uploaded to the online Portal on 23 July 2015. The Defendant did not provide a response within the 30 days deadline, and thus the claim exited the Protocol on 15 September 2015. The Defendant requested that the case be resubmitted to the online Portal, but the Claimant rejected these requests. The Defendant went on to admit liability and the Claimant collated evidence in the form of a medical report, and a Schedule of Loss was prepared. The Claimant sought advice from Counsel who advised on the value of the claim in a conference. The claim then settled for £70,000 on 19 December 2017.

The Claimant went on to submit a Bill of Costs whereby Counsel’s fee for the advice was claimed in the sum of £650 plus VAT. The Defendant disputed the Claimant’s entitlement to this fee in their Points of Dispute and appealed the Costs Officer’s decision, who held against the Defendant in allowing for the Counsel fees to be recovered.

At appeal, the Defendant made the argument that only disbursements that fall under Rule 45.29 should be capable of being recovered. This rule states that advice from Counsel or a specialist solicitor is capable of being recovered as provided for in the Protocol. The Defendant went on to argue that because the matter was no longer in the Protocol, then this provision could not apply, and this fee should not be recoverable.

Master Brown at the SCCO stated that Part 45.23B in Table 6A was not intended to apply to claims which had exited the Protocol and thus those fees were recoverable. The Defendant’s appeal was dismissed.

How can ARC Costs help?

ARC Costs are a team of Costs Draftsmen and Costs Lawyers who can assist you in the recovery of costs. Whether you are the paying party or the receiving party, we hold vast experience in dealing with costs matters on both sides. We can assist in fixed recoverable costs cases and cases where costs are awarded on the indemnity basis. Should you require our assistance or have any further queries regarding costs, please contact us on 01204 397 302. Alternatively, please complete our online enquiry form, and we will contact you to discuss your query.

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