Part 1 – Portal claims
This this the first in a new series of articles designed to assist case handlers in navigating the rules concerning disbursements under the new fixed recoverable costs (FRC) regime, which came into force on 01/10/23. This series will be structured according to claim type, with each article exploring what has changed, what remains the same and where we are still waiting for clarity from the courts, as regards disbursements in a given type of claim.
These articles will assume a certain degree of familiarity with the disbursements that were recoverable under the old FRC regime and with the circumstances in which the new FRC regime applies. Any readers in need of a quick refresher can consult the accompanying cheat-sheet for an easily digestible breakdown.
This article deals with disbursements in claims that conclude within the MOJ Portal and will address:
1. The general rules on disbursements in Portal claims
2. Additional rules which apply to RTA soft tissue and whiplash claims
3. How the new rules deal with counsel’s fees in Portal claims
Subsequent articles will explore Fast Track claims (including claims which commenced within the Portal and claims which did not), Intermediate Track claims and NIHL claims.
Unless specified otherwise, all references to the CPR refer to the current version of the rules.
1 - Disbursements in Portal claims
In claims commenced under the RTA or EL/PL Protocols which settle without exiting the MOJ Portal, the only disbursements recoverable are those set out in 45.58:
(a) subject to rule 45.62, the cost of obtaining—
(i) medical records; and
(ii) expert medical reports as provided for in the relevant Protocol;
(b) the cost of obtaining non-medical expert reports as provided for in the relevant Protocol;
(c) court fees payable—
(i) as a result of Part 21 being applicable;
(ii) where proceedings are started as a result of a limitation period that is about to expire; and
(iii) in respect of the Stage 3 Procedure;
(d) the provider cost of a telephone hearing;
(e) additionally, in a claim to which the RTA Protocol applies—
(i) an engineer’s report; and
(ii) a search of the records of—
(aa) the Driver Vehicle Licensing Authority; and
(bb) the Motor Insurance Database; and
(f) any other disbursement reasonably incurred due to a particular feature of the dispute or any requirement of these rules.
This more or less replicates the old 45.19, so Portal claims handlers will find themselves on familiar ground.
Specific provision is now made in subsection (d) for the cost of telephone conferencing services where a telephone hearing takes place.
Subsection (f) suggests that the Court of Appeal judgment in Cham v Aldred [2019] EWCA Civ 1780 regarding what constitutes a disbursement “reasonably incurred due to a particular feature of the dispute” still has some relevance, although new provisions in respect of ex-Portal cases may cast some doubt on this assertion (see next article).
It is interesting that, in contrast to the provisions relating to claims which have exited the Portal (see next article), no specific provision is made for interpreters’ or translators’ fees in Portal claims. Whether this distinction is intentional and such fees are not recoverable in Portal claims, or whether courts will apply the principle of Santiago v Motor Insurers’ Bureau [2023] EWCA Civ 838 and treat such fees as recoverable under subsection (f) remains to be seen. Given concerns surrounding access to justice though, the latter seems more likely.
There is also no clarification as to whether medical agency fees for obtaining reports and records will be recoverable under the new regime (despite the contentious and inconclusive line of case law under the old regime), but subsection (a) preserves the old wording, “the cost of obtaining” (as opposed to simply “the cost of”), on which claimants have based their assertions that agency fees are recoverable.
Interestingly, subsection (b) extends this choice of wording to non-medical expert fees, in contrast to the old 45.19 which provided only for “the cost of any non-medical expert reports…”. Are we to take from this that agency fees for obtaining engineers’ reports and the like are now recoverable, or is this a correction of an old drafting error and we are no longer to attribute any special meaning to the phrase “the cost of obtaining”? Time and case law will tell.
2 – RTA soft tissue & whiplash claims
(1) This rule applies—
(a) to a soft tissue injury claim; or
(b) a claim which consists of, or includes, a claim for a whiplash injury,
which arises from a road traffic accident.
(2) Where this rule applies, the only sums (exclusive of VAT) that are recoverable in respect of the cost of obtaining a fixed cost medical report or medical records are as follows—
(a) obtaining the first report from an accredited medical expert selected via the MedCo Portal: £180;
(b) obtaining a further report where justified from an expert from one of the following disciplines—
(i) Consultant Orthopaedic Surgeon (inclusive of a review of medical records where applicable): £420;
(ii) Consultant in Accident and Emergency Medicine: £360;
(iii) General Practitioner registered with the General Medical Council: £180; or
(iv) Physiotherapist registered with the Health and Care Professions Council: £180;
(c) obtaining medical records: no more than £30 plus the direct cost from the holder of the records, and limited to £80 in total for each set of records required. Where relevant records are required from more than one holder of records, the fixed fee applies to each set of records required;
(d) addendum report on medical records (except by Consultant Orthopaedic Surgeon): £50; and
(e) answer to questions under Part 35: £80.
(3) Save in exceptional circumstances, no fee may be allowed for the cost of obtaining a report to which paragraph (1) applies where the medical expert—
(a) has provided treatment to the claimant;
(d) is associated with any person who has provided treatment; or
(c) proposes or recommends treatment that they or an associate then provide.
(4) The cost of obtaining a further report from an expert not listed in paragraph (2) is not fixed, but the use of that expert and the cost must be justified.
This replicates exactly the provisions of the old 45.19(2A-C), with which Motor handlers will already be very familiar. Interestingly, the various fixed fees have not been revised to account for inflation.
Agency fees for obtaining medical records are still specifically provided for in (2)(c), so this will remain relevant to the ongoing debate.
3 – Counsel’s fees:
Perhaps the biggest change that the new FRC regime has introduced in respect of disbursements is that where specific provision is made for counsel’s fees, they are generally treated as add-ons to the applicable fixed costs rather than disbursements.
This was, however, always the case in respect of Portal claims, and so the provisions of 45.34 will strike a familiar chord with Portal handlers:
(1) Where—
(a) the value of the claim for damages is more than £10,000;
(b) an additional advice has been obtained from a specialist legal representative, and that advice—
(i) is within the legal representative’s specialist expertise; and
(ii) is reasonably required to value the claim,
the fixed costs may include an additional amount equivalent to the Stage 3 Type C fixed costs.
(2) In a claim to which the RTA Protocol applies—
(a) vehicle related damages are excluded for the purpose of valuing a claim under paragraph (1)(a); and
(b) ‘vehicle related damages’ has the meaning ascribed to it by paragraph 1.1(18) of the RTA Protocol.
The old 45.23B, providing for a single quantum advice in certain claims over £10,000.00, has been preserved here, and again the relevant fixed fee has not been revised.
The requirement under subsection (1)(b)(i) that the matter be within counsel’s specialist expertise is a new addition, and we have no guidance as to how the courts will interpret it. Interrogating counsel’s areas of expertise and seeking to disallow their fees on the grounds that the claim in question is not within their “specialist expertise” seems like a risky venture, but it would not be without an arguable basis in the rules and we will probably see it tested before long.
Subsection (2) restates provisions that already existed in para 7.10 of the RTA Protocol, but which were not previously made explicit in Part 45.
Additional counsel’s fees may still be justified under 45.58(f) (see 1.1 above), but given the court’s comments in Cham v Aldred that “If an item of work is deemed (or can be said implicitly) to be within the fixed recoverable costs … then it will not be separately recoverable as a disbursement” it seems highly unlikely that any further advices from counsel (at least relating to quantum) will be recoverable.
Strictly speaking, an advice does not have to come from counsel to be recoverable under these provisions, but can come from any specialist legal representative. When advice from a source other than counsel is sought, maximum scrutiny of their specialist expertise is called for, and where that person is also the handler of the claim there will be serious questions to be asked about whether this advice falls outside the ordinary case work that should properly form part of the fixed costs. We are currently in the dark as to how flexibly the courts will interpret these provisions and recommend that any issues of this kind which arise are referred immediately to the Costs team.