Reported on Lawtel:
CC (Oxford) (District Judge Jenkins) 21/10/2009
Where CPR Pt 8 proceedings had been issued in order to obtain the court's approval of a settlement figure of £300 in relation to a minor, the Pt 8 proceedings had to be treated as if allocated to the multi-track rather than the small claims track for the purpose of assessing costs.
The court was required to determine costs following the settlement of a claim by the claimant infant (D) for damages for personal injury against the defendant (W). D, who was three years' old, had been involved in a road traffic accident and suffered severe anxiety and insomnia for a week due to the stress of the accident. D was examined, for the purposes of litigation, by a doctor who provided a report supporting the claim. Damages were agreed in the sum of £300, subject to court approval and CPR Pt 8 proceedings were issued. D sought costs in line with CPR Pt 45 (II) on the basis that Pt 8 proceedings had to be treated as if allocated to the multi-track in accordance with Pt 8.9(c) and r.27.14.2. D submitted that the small claims track was not the appropriate track as claims on behalf of children or patients did not allow for settlement without court approval and had to be treated entirely differently to small claims hearings given the requirements of Pt 21 and the need for representation. D submitted that expert evidence was not allowed without court permission and costs of the same were limited under the small claims regime.
HELD: The rules were unclear where a minor sought court approval of a settlement under £1,000 under the procedure set out in r.21 and Pt 8 and therefore nominally allocated to the multi-track. On any view the claim could not be regarded as a small claims track case save by virtue of the amount of money involved. The small claims route was for specific types of small dispute and some of the more complex and advanced rules were excluded and did not apply. Part 35 was an example as small claims track cases did not commonly involve any expert evidence. In order to obtain an infant settlement approval there had to be expert evidence and an opinion in relation to the damages. Even where the costs sought appeared disproportionate they were necessarily incurred in order to meet the requirements of Pt 8 and Pt 21. The case of Coles v Keklik Unreported June 30, 2008 CC (Liverpool) could be distinguished as, in that case, no claim had been issued, Coles distinguished. Accordingly, D was entitled to costs sought.
Costs determined
Counsel:
For the claimant: Carrie Sykes
For the defendant: Mr Cuthbert
Solicitors:
For the claimant: Lyons Davidson
For the defendant: McCullagh & Co
KEREM DIGA v PAUL WAITE (2009)
Reported on Lawtel:
ADIL NAZARI (A CHILD) v ARBORECARE (UK) LTD (2011)
CC (Bournemouth) (District Judge Dancey) 28/1/2011
The provision in the CPR r.45.7(2)(d) that the predictive costs regime applied to claims for agreed damages that would not have been allocated to the small claims track did not apply to claims under r.21.10(2) by a child or protected party for approval of a settlement. The predictive costs regime applied to such claims even if approved damages were less than £1000.
The court was required to determine costs arising out of infant settlement proceedings between the claimant child (N) and defendant company (X). N, who was 20 months' old at the time, had been involved in a road traffic accident as a passenger in a vehicle. He suffered moderate neck pain for two weeks. Damages were agreed at £700 and approved at an infant settlement hearing. The order provided that X should pay N's costs. The issue to be determined was whether N was entitled to recover costs under the predictive costs regime under the CPR Pt 45 r.45.2 or whether he was confined to small claims costs under r.27.14. X submitted that the wording of r.45.7(2)(d), that the predictive costs regime applied if a claim had been issued for the amount of agreed damages and the small claims track would not have been the normal track for that claim, took N's claim out of the predictive costs regime because if N had issued a claim it would have been allocated to the small claims track.
HELD: (1) Pursuant to r.21.12(2), all infant settlement approval claims had to be issued under Pt 8 and were automatically allocated to the multi track. The usual rules about allocation to fast and small claims tracks did not therefore apply. The words in r.45.7(2)(d) referred to costs only proceedings brought by adult claimants who had already agreed liability and damages pre-issue so that the only matter remaining was costs, Dockerill and Healey v Tullett not followed. If a claim was issued under r.21.10(2) by a child or protected party, r.45.7(2)(d) did not apply because the wording was entirely inapposite. Rule 45.7(2)(a), (b) and (c) applied to proceedings for approval of a settlement or compromise under r.45.7(1)(b) but not r.45.7(2)(d). Accordingly, N's claim fell within the predictive costs regime (see paras 7-8, 10-11 of judgment). (2) The court had a discretion to depart from the predictive costs regime. The starting point was to consider whether the costs claimed were disproportionate. If they were then the court should go on to consider whether they should be limited to such costs as were reasonable and necessary, Voice & Script International Ltd v Alghafar (2003) EWCA Civ 736, (2003) CP Rep 53 and O'Beirne v Hudson (2010) EWCA Civ 52, (2010) 1 WLR 1717 applied. There were strong policy reasons, relating principally to access to justice, for exercising discretion in infant and protected party approval settlements against limiting costs to small claims. In such proceedings it was both reasonable and necessary to instruct a solicitor, obtain a medical report and counsel's advice and so on. Such cases should not be limited to the small claims costs where damages were less than £1000 (paras 12, 14, 16-18). (3) X should pay N's costs under the predictive regime.
Costs determined
Counsel:
For the claimant: C McCauley
For the defendant: N Aslam
Solicitors:
For the claimant: Lyons Davidson
For the defendant: Taylor Rose Law