Caren Sharp – Court of Appeal

The costs provisions in relation to pre-action disclosure applications are hardly the most exciting topics of legal discussion. For the uninitiated, a pre-action disclosure application in personal injury work is launched when a prospective Defendant to a case fails to comply with the protocols which are designed to govern how we conduct the early stages of investigations of personal injury cases.

As part of the “low value” personal injury protocol, a series of fixed costs have been implemented now for some years, which means for successful claims made, a pre-determined amount of legal costs can be won from a careless Defendant who is responsible for the accident and who has caused the injury.

The question was whether or not the fixed costs regime applied to pre-action disclosure applications, and that was determined in the case of Sharp –v– Leeds City Council. For Mrs Sharp, we argued that pre-action disclosure applications are made in the context of a self-contained code and given that they were “pre-action” could not be construed properly as “interim”. This was the argument adopted by the Defendants, which was to say that the fixed costs regime applied to pre-action disclosure applications.

There is little point in me here rehearsing the arguments that were placed before the Court of Appeal and given the composition of that Court (Lords Justice Jackson, Briggs and Irwin) perhaps the outcome was inevitable.

At present, therefore, and thanks to the current drawing of the Rules, a successful Claimant solicitor will earn precisely £125 plus VAT for the following:-

  1. Preparation of an Application Notice setting out the reasons why a pre-action disclosure order is sought.
  2. A lengthy witness statement setting out the background to the case, including accident circumstances, why the Defendant is to be held responsible, the Defendant’s failure to comply with the relevant pre-action protocol and the documents which are sought which are reasonable, proportionate and necessary.   
  3. A draft Order.
  4. Oh, I nearly forgot, a full hearing before a Judge.

Even in the most experienced hands, time spent will probably be in the region of between 2 to 3 hours, assuming a short 10 to 15 minute hearing. Of course, if the hearing is contested, more time is spent.  

Even Lord Justice Briggs seemed to raise his eyebrows and acknowledge that for all of that necessary and proportionate work to be remunerated for a fixed fee of £125 is far too low.

My own suspicion is that when those on the Civil Justice Council Costs Committee sat in judgment and decided that an interim application ought to be remunerated in the sum of £125, they had absolutely no idea that the definition of an interim application would be construed as covering a pre-action disclosure application. 

But there it is.

Given that the applications are invariably brought against a backdrop of non-compliance with pre-action protocols, something which Lord Justice Jackson himself has urged upon all those involved in litigation, it is indeed a poor reward for those who are trying to do the job right.

For more information on any of the issues above, give one of our Personal Injury experts a call on 0113 232 1030 for a free, initial consultation.

Andrew Greenwood

Written by

Andrew Greenwood

Director & Head of Personal Injury

Andrew is a Director and Head of Personal Injury with over 35 years’ experience as a solicitor. He has expert knowledge in serious brain, spinal and fatal injury cases. Andrew is a Deputy District Judge in the High Court and County Court, a founding member and trustee of national charity SCARD (Support and Care After...

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