FRC Corner with Chris Simpson

Welcome to FRC Corner with our resident Fixed Recoverable Costs expert Chris Simpson. Chris is an Associate in our costs teams and deals with all aspects of the fixed recoverable costs regime. FRC Corner focuses on practical tips in response to real life queries.

This month Chris focuses on counsel’s fees on the Fast Track;

Q: I have settled a Fast Track data breach claim on the basis that band 3 costs will apply. The claimant is now seeking to recover a fee for counsel’s advice. Is this recoverable?

A: Not in a band 3 claim. Fees for counsel (or other “specialist legal representatives”) providing advice or drafting statements of case are dealt with as add-ons to the receiving party’s fixed costs in the new FRC regime, rather than as disbursements. If the relevant criteria are met, an additional fixed sum can be recovered.

In the fast track, these fees are set out in PD 45 Table 13, and their application is governed by CPR 45.46. The very first criterion set out is that such fees are only recoverable “where a claim would normally be assigned to band 4”. This is a band 3 claim; an advice fee is therefore not recoverable.

It is worth noting that even if this were a band 4 claim, there would be no automatic entitlement to recover this fee. The person who provided the advice must be acting “within their specialist expertise” or must be “the intended trial advocate”, and the use of that person to provide the advice must be justified.

While these add-ons are not, strictly speaking, disbursements, it is always worth seeking evidence that counsel or some other external specialist has been instructed when they are claimed. We are seeing an increasing number of firms attempting to claim these fees for work that has been conducted internally, when nothing outside the ordinary course of handling the claim has been done.

Look out for the next FRC Corner coming soon…