Issue 39 October 2021 - Journal - Page 37
It is perhaps therefore of some comfort that now when
a court considers costs and their proportionality under
rule 44.3(5), it will have to take into account any additional work undertaken or expense incurred due to
the vulnerability of a party or any witness. Vulnerability will need to be considered when costs management
orders are made.
This has had an impact upon claimant practitioners
who, by virtue of the rules are required to produce
advices on quantum and ensure that documents are
translated as appropriate. It was seen by some as a significant barrier to access to justice, as it would simply
become financially unviable for some firms to take on
such cases. These concerns were in fact acknowledged
by the Supreme Court when refusing the application
for appeal in Aldred, with Lords Hodge, Briggs and
Leggat recommending that the CPRC should consider the implications of the case.
This appears to be an appropriate and common-sense
approach, which provides the best opportunity to ensure that relevant steps are taken; by providing proportionate costs recoverability.
It appears that heed has been taken and consequently
CPR 45.29I (h) is to be amended to read “any other
disbursement that has arisen due to a particular feature of the dispute or which are required by the rules
to be incurred” (amendment in bold).
A similar approach, that not only takes account of individual factors, but importantly accounts for the costs of
such can be seen in proposed amendments to CPR 45.
The Civil Procedure Rules Committee (CPRC) is said
to be amending Part 45 in due course to allow for
counsel’s advice to be used in infant settlement hearings and further translation fees.
This rule change does not alter the decision in Aldred,
as in that case it was found that the age of a child or
language of a litigant were factors that pertained to
the individual, not a feature of the dispute. Essentially
the rules side-step this decision and allow for such
features to be taken account of and costs recovered.
The subject of both such fees featured in the muchdebated decision of Aldred v Cham  EWCA Civ
1780, in which it was held that the fees for counsel advising on child settlements under the RTA protocol
and interpreter fees were not recoverable in accordance with CPR 45.29(I) as they were not considered
to be ‘a particular feature of the dispute’.
This development, like the amendment to the
overriding objective ensures that individual characteristics do not pose as a barrier to justice, which is the
cornerstone upon which any legal system is founded.
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