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After the disappointing decision in Simcoe v Jacuzzi UK Group plc  EWCA Civ 137 we now have some good news for defendants and insurers.
How should the courts approach a detailed assessment hearing where the case concerns a child, damages for personal injury are agreed at no more than £1,000 and the matter proceeds just in relation to an infant approval hearing? Because the matter settles pre-proceedings it will not have been allocated to the small claims track, as would be normal for a claim of this value. Part 8 proceedings for infant approval hearings are treated as being allocated to the multi-track. Can the claimant recover costs on the standard basis? No, said the Court of Appeal in Dockerill v Tullett  EWCA Civ 184 (heard with the linked appeals of Macefield v Bakos and Tubridy v Sarwar). Although the Court should not simply impose small claims track costs, it should exercise scrutiny when deciding what legal involvement was required. In reality, this will usually mean limiting the legal fees to the costs of an advice on quantum (all that is required for an infant approval hearing). Any other solicitors’/barristers’ fees are likely to be disallowed.
What about the situation where a matter falls into the predictable costs regime for RTAs? The rules allow for recovery of counsel’s fees where they have been “necessarily incurred”. The Court ruled that the costs of counsel providing the written advice for the approval hearing will normally be recoverable but the costs of counsel attending the approval hearing will not normally be allowed.
These decisions will produce significant savings for defendants and insurers and provide long awaited certainty for law costs draftsmen and costs lawyers.
I note that costs counsel Roger Mallalieu appeared for the successful claimants in Simcoe. He appeared for the successful defendants in these cases. Roger is clearly on a bit of a roll.