Pre-Action Disclosure and the Low Value Protocol: what costs are payable?

Published 22 November 2018

Where claims commence within the Pre-Action Protocol for Low Value Personal Injury (Employers' Liability and Public Liability) Claims and then exit the Portal process, the costs payable are fixed, calculated in accordance with Rule 45.29.  The costs of applications for Pre-Action Disclosure should be fixed, following the Court of Appeal's judgment in Sharp v Leeds City Council (2017), but should those costs be £405 or £555?

This question was considered by District Judge Hassell in the County Court in Manchester on 15 November 2018, in Melvin v Hill Care Limited.

The application for disclosure was resolved some time before the hearing, leaving only the question of costs to be decided. 

The Claimant sought to recover the sum of £555, i.e. profit costs of £250 plus VAT and the Court Fee, the profit costs being one half of the applicable type A and type B costs following the County Court  judgment in Skowron v Rollers Roller Disco Ltd (2017). 

The Defendant relied on the County Court judgments in Hannon v Cheshire West and Chester Council (2017) and Baines v Greencore (2017) and argued that, as type A was legal representatives' costs  and type B the advocate's costs the profit costs should be limited to one half of type A only (£125) and the total costs £405.

District Judge Hassell, noting that the type B costs are the advocate's costs and therefore are payment for the work performed by an advocate (which may include written submissions prior to a hearing or a brief fee if the application is compromised shortly before the hearing), decided that, as no advocate had been instructed prior to the compromise of the application, the costs should not include the advocate's fee.

The costs of the Claimant of the application were limited to one half of the applicable type A costs, plus VAT and the Court Fee, i.e. £405.  Further, as the claim proceeded to hearing solely due to the Claimant's pursuit of costs, the Claimant was ordered to pay the Defendant's costs of the hearing (which were not limited to fixed costs).

Where Claimants' representatives seek to recover the costs of a Pre-Action Disclosure application at £555, despite early provision of disclosure and compromise of the application, this judgment and those in Hannon and Baines should be relied on to argue that the costs should not exceed £405.

DAC Beachcroft represented the Defendant in the application in Melvin v Hill Care Limited.