In October 2019 the Court of Appeal gave judgement in Aldred v Cham  EWCA 178, an important appeal concerning the recovery of costs in ex-portal, fixed costs cases under Civil Procedure Rule 45.29I(2)(h).
It was asked to consider whether a fee paid to a barrister to provide advice on a low-value personal injury claim involving an infant was recoverable from the defendant. The Court decided the fee was not "reasonably incurred due to a particular feature of the dispute", thereby meaning it could not be reclaimed as part of the claimant's costs.
In personal injury cases where an infant is involved, it is usual to seek advice from a barrister before a case is settled. As a result of Aldred v Cham, in such cases where the value of the claim is £25,000 or less, the cost of instructing the barrister cannot be recovered from the defendant.
This will result in the cost being borne by claimant solicitors or passed onto their clients, meaning a firm will lose the majority of its costs or consumers will face a significant reduction in the amount of compensation they receive.
The effects of the judgement in Aldred v Cham are not restricted to cases involving children. The Court of Appeal has suggested that interpreter fees for non-English speaking claimants are also not recoverable, whereas previously it was not uncommon for claimants to recover these costs. Now, their inability to do so is likely to create significant barriers to accessing justice, not least as it may become financially unviable for solicitors to represent them.
Moreover, Aldred v Cham is being used by some defendants to disallow other costs which are unavoidably incurred in low-value personal injury claims. Examples include:
- obtaining a Grant of Probate (which confirms that an executor has the authority to deal with a deceased person's assets) when a grant is not requested expect for the personal injury claim; and
- the medical agency element of all non-fixed costs medical reports, which effects thousands of claims each year.
Again, these changes represent a significant risk to access to justice and may lead to consumers abandoning their claim or having to face the daunting process of becoming litigants in person.
These concerns have been acknowledged by the Supreme Court. When refusing the application for permission to appeal in Aldred v Cham, Lords Hodge, Briggs and Leggat stated the Civil Procedure Rules Committee (CPRC) should consider the implications of the case. As such, the matter is currently with the CPRC costs sub-committee, although no decision has yet been announced.
The Association of Consumer Support Organisations (ACSO) is currently engaging with the CPRC on Aldred v Cham, urging it to implement a change in the Civil Procedure Rules to allow the reasonable recovery of costs. This will remove the barriers to justice that the Court of Appeal judgement has raised.
Author: Jamie Noble, ACSO secondee and trainee solicitor at Minster Law.