Costs in Infant matters

October 2011

In settlements involving infants less than £1,000.00 the defendants argue entitlement is only Small Claims Costs.  Clear disparity in recoverable costs of the costs regimes – just a few pounds either way can affect costs substantially.

In an infant case that settles below £1,000.00 it is not a small claims matter. Even if the Small claims track would be the normal track for the value of the claim, the Small claims costs do not apply. Please refer Rule 21.10(2)(b) CPR which states that Infant matters must follow the Part 8 procedure. Part 8, Rule 8.9(c) CPR states that the matter shall be allocated to the multi-track and Part 26 (allocation) does not apply. Furthermore, rule 8.9 describes itself as a modification of the general rule, which is taken to mean that it over-rides other rules.

It follows then that Multi-track costs apply and not Small Claims Costs (or even Part 45 predictive costs for that matter)

Counsel should be instructed to ask for costs to be assessed on the standard basis to be dealt with by detailed assessment if not agreed. Counsel can recover his opinion fee as being necessarily and reasonably incurred and counsel should look to Thaxton v Goodman (2010) for the recovery of his attendance fee, approved in the sum of £150.00

However, there are rumours circulating that Thaxton is to be appealed. A number of low level judgments, e.g DJ Platts decision in GW -v- BW & TA -v- RP  [2011] EW Misc 10 (CC) are becoming cited more often in support of no counsel’s fees and indeed no actual need for an Infant Approval hearing in any event.

There is some hope though, if the matter has not been settled by the Judge at Approval hearing, it is still “live.” (see Drinkall -v- Whitwood [2003] ADR LR 11/06)  Negotiate a-plenty for the correct decision as to liability for costs before the hearing and send it to costs draftsman with counsel’s carefully phrased Order after the Hearing.


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