The High Court has ruled that counsel’s brief fee for an RTA claim settled the day before trial is not recoverable.

In Coleman v Townsend, Master Howarth said this was not a dispute where the court could allow the fees as a disbursement which were either properly of reasonably incurred.

The judge cited the Court of Appeal judgment in Aldred v Cham, where Lord Justice Coulson denied recovery of disbursements for work that did not fall within the fixed recoverable costs regime.

Howarth ruled that the claim for fees fell within the category which includes all work on or after the day of listing, but prior to the date of trial. The further stage, which includes the trial advocacy fees, ‘was not reached in this case. The day of the trial was not yet at hand’.

In Coleman, the defendant had appealed the award of counsel’s abated brief free for trial at £852.50 and skeleton argument at £370. Both were fixed costs subject to Civil Procedure Rules.

The matter had been a £12,000 claim following an accident in 2015. It was uploaded to the portal but exited when the defendant’s representatives did not admit liability. 

After proceedings were commenced in the county court, the defendant then admitted liability. The matter was listed for trial at Romford County Court with counsel briefed to attend. However the matter settled following acceptance of the defendant’s Part 36 offer on the afternoon prior to the trial date.

The RTA portal sets out fixed costs where a claim no longer continues under the protocol. This includes provision for where the case settles before trial.

It was submitted by the defendant that a trial advocacy fee was recoverable only where a claim is settled on the day of trial or at trial. There was no provision for a fee to be payable at any earlier point.

The claimant submitted that the court had made a direction for skeleton arguments to be exchanged, and that counsel’s fee was therefore a disbursement and recoverable. Given the trial date was so soon, counsel had inevitable already been briefed and nothing in the rules prevented the fee from being paid.