The recent Court of Appeal decision in Aldred v Cham is of interest to those who handle, and appear in court on, claims that start life within the RTA Pre-Action Protocol and then drop out of it. The most common reason for such claims leaving the Protocol (‘PAP’) is liability being denied by the Defendant.

The fixed recoverable costs in this instance are governed by Part 45, Section IIIA. The case concerned a child Claimant, and the Court had to consider whether the fee for counsel’s Advice on Quantum was recoverable from the Defendant as a disbursement, or whether this was precluded by the fixed costs regime.

Before the Court of Appeal, the Claimant contended that counsel’s fee was indeed recoverable from the other side, because it was a disbursement which fell within CPR 45.29I(2)(h), namely that it was a disbursement which was reasonably incurred due to a particular feature of the dispute, the ostensible feature being that the Claimant was a child. Perhaps surprisingly, the Coulson LJ – giving the lead judgment, on which point McCombe LJ and Davies LJ agreed – held that the Claimant being a child was not a particular feature of the dispute. The Judge considered that examples of particular features of the dispute would include the mechanism of the accident, who was to blame, the nature, scope and extent of the injuries and ‘other matters of that kind’.

The extent of the Claimant’s recovery was limited on the facts to the amounts set out in Part 45.29C at Table 6B.

The decision raises a number questions and appears surprising, given that Practice Direction 21 paragraph 5.2 makes it necessary to obtain an Advice on Quantum ‘except in very clear cases’. This is purely because of the status of the Claimant, either being a child or a protected party. It is difficult to see the criteria by which the Court is distinguishing ‘particular features of the dispute’ on one side, from the status of the Claimant under the Rules, holding the latter not to be a feature of the dispute. The case has already generated a significant amount of commentary amongst practitioners.

It is notable that the decision relates only to the fee for Advice, and it is not of general application to other disbursements, such as attendance fees.

There is as of yet no Supreme Court authority on the question, although it remains to be seen whether such a judgment will be handed down in the future.