Dockerill & Healey –v- Tullett; Macefield –v- Bakos; Tubridy –v- Sarwar [2012] EWCA Civ 184 (24th February 2012)

In Dockerill and Macefield, the District Judges found that infant approval proceedings issued under Part 8 were multi track proceedings under CPR 8.9(c) to which small claims costs could not apply. They therefore awarded predictive costs under CPR 45II. In both cases, the Court of Appeal found that “claim” meant the claim for damages rather than the proceedings under CPR 21.10(2). In both cases, the value of the damages would have been under £1,000 and therefore CPR 45II did not apply. The costs fell to be assessed under CPR 44.5. D argued that in such an assessment the costs judge could consider the reasonableness of instructing Solicitors at all under O’Beirne –v- Hudson [2010] EWCA Civ 52. The Court of Appeal found that the anomaly of infant approval hearings being excluded from both the predictive and fixed costs regimes was resolved by allowing the Costs Judge to consider the size and complexity of the underlying claim for damages in accordance with CPR 44.5(3). O’Beirne could not apply because a claim under CPR 21.10(2) was a multi-track claim. However, the value and complexity of the claim would be a highly material circumstance in considering whether it was proportionate to have instructed solicitors in the approval proceedings beyond providing an advice on the settlement.

In Tubridy, D appealed against the allowance of Counsel’s fee under CPR 45.10(2)(c) for representing the Claimant at an infant approval hearing. The Court of Appeal found that the word “necessarily” meant that there had to be some complexity to justify Counsel being instructed. That test was not satisfied and the Claimant’s Solicitors would have to bear Counsel’s fee out of their predictive costs.