Part 2 – Ex-Portal Fast Track claims
This this the second 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 Fast Track claims that commenced within the MOJ Portal but have subsequently exited the Portal and will address:
1. The general rules on disbursements in disbursements in ex-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 ex-Portal claims
4. Provision for restoration proceedings
Claims which settle within the Portal have been addressed in a previous article. Subsequent articles will explore Fast Track claims which did not commence within the Portal, 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 ex-Portal claims
In claims which commenced under the RTA or EL/PL Protocols but have since exited the Portal (i.e. claims which would have been subject to FRC under section IIIA of the old Part 45):
the only recoverable disbursements are those set out in 45.59(a):
(i) the applicable disbursements referred to in rule 45.58 (a) and (b) and (d) to (f);
For ease of reference, these are:
(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;
(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.
(ii) any court fees;
(iii) in a claim which arises from a road traffic accident, the cost of obtaining a police report;
(iv) any expert’s fee for attending the trial where the court has given permission for the expert to attend;
(v) any interpreters’ or translators’ fees;
(vi) expenses which a party or witness has incurred in travelling to and from a hearing or in staying away from home for the purposes of attending a hearing; and
(vii) a sum not exceeding the amount specified in Practice Direction 45 for any loss of earnings or loss of leave by a party or witness due to attending a hearing or to staying away from home for the purpose of attending a hearing;
These provisions broadly reflect the old 45.29I(2) & (3), but there are some changes worth noting.
45.58(d) makes specific provision for the cost of telephone conferencing services where a telephone hearing takes place.
45.58(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).
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, 45.58(b) extends this choice of wording to non-medical expert fees, in contrast to the old 45.29I 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.
Specific provision is now made under subsection (iii) for the cost of police reports in RTA claims, which would previously have to have been justified as disbursements reasonably incurred due to a particular feature of the dispute.
Specific provision is also made under subsection (v) for interpreters’ and translators’ fees, doubtless a response to the decisions in Cham and Santiago. As discussed in the previous article, there is a notable absence of a similar provision for claims which do not exit the Portal.
Notably, 45.59 lacks any provision for counsel’s advice “as provided for the relevant Protocol” as was seen in the old rules. The new FRC regime takes a markedly different approach to counsel’s fees in ex-Portal cases and this will be explored below.
2 – RTA soft tissue & whiplash claims
In “soft tissue injury claims” or “whiplash injury” claims, within the meaning of the RTA Protocol (see paras 1.1(16) & (20) thereof), 45.59(a) is restricted further by 45.62:
(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 45.29(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
Provision is still made for recovery of counsel’s advice fees on quantum in ex-Portal claims, but these are no longer treated as disbursements. Instead, they take the form of an add-on to the claimant’s fixed costs much like advice obtained in Portal claims under the old rules. 45.47 refers:
(2) Where this rule applies and—
(a) an advice has been obtained from a legal representative as provided for in the relevant Protocol; or
(b) an advice has been obtained from a specialist legal representative on the amount of damages where the claimant is a child and that advice—
(i) is within the legal representative’s particular expertise; and
(ii) is reasonably required to value the claim,
the fixed costs may include an additional amount of £150
This represents a significant change to the rules on counsel’s advices that we are used to, and effectively provides for two categories of advices.
Subsection (a) provides for advices “as provided for in the relevant Protocol” in a manner with which fast track PI handlers will already be familiar. Paras 7.8 and 7.10 of the EL/PL and RTA Protocols respectively remain relevant, and claimants will only be able to rely on this provision to recover a single advice on quantum in certain claims valued over £10,000.00.
Subsection (b) makes a brand new, specific provision for quantum advices obtained for the purpose of infant approval hearings, which were explicitly deemed not recoverable in ex-Portal claims under the old regime by the Court of Appeal in Cham v Aldred (the claimant’s age not being deemed a particular feature of the dispute). This may indicate that Cham is not as relevant to the new regime as previously suspected. How the courts will interpret the requirement that the advice be within counsel’s particular expertise remains to be seen.
In both categories, we see the new development that quantum advice fees are now fixed at the modest sum of £150.00. No such restriction existed in the old regime, and this will no doubt lead to some substantial savings for defendants.
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 or particular expertise is called for, and where that person is also the primary 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.
It is interesting to note that in Fast Track claims that have not commenced in the Portal, provision is only made for recovery of counsel’s advice fees in Band 4 claims. 45.47 therefore represents something of a back door by which such fees can be recovered in Band 1-3 cases, although the dramatic difference in the fixed fees that apply to such advices means that this is hardly the most lucrative of loopholes.
4 – Restoration proceedings
All Fast Track, Intermediate Track and NIHL claims under the new FRC regime are subject to 45.15A which provides that:
(2) Where—
(a) it is necessary for the claimant to make an application in separate proceedings to restore a defendant company to the Companies Register; and
(b) the claimant is successful in their claim and obtains an order for costs against that defendant,
Additional disbursements, as set out PD 45 Table 15A(2) will be recoverable. These disbursements are:
(a) any fees charged by the Government Legal Department or the solicitors to the Duchy of Lancaster or the Duchy of Cornwall;
(b) any court fees;
(c) the disc fee; and
(d) any adjournment fee
These provisions are self-explanatory.