Two for the price of one?; Multiple Claimants under the RTA protocols

It is not uncommon for counsel to be asked to represent two or more claimants in a personal injury claim arising out of a road traffic accident, proceeding on the fast track. Usually, it will be the driver and one or more passengers.

On occasion, I am a little perturbed by this.

This is because formally speaking there may well be a conflict of interest between a passenger and their driver where liability is in dispute. Or (perhaps more likely), a conflict could emerge at a later point.

If liability is determined against the claimant driver, then his co-claimant passenger could have a claim against him. That would mean the solicitors representing both claimants would have a clear conflict of interest, as they would have two clients who are clamant and defendant in the same action.

If the passenger has, however, issued their claim as a co-claimant with the driver of the vehicle they were in, they are likely to have blown their chance at obtaining a judgment against their own driver, if they are found to be negligent. This is because they won’t properly have an opportunity to re-litigate an issue which ought to have been disposed of in the initial proceedings (under the rule in Henderson v Henderson (1843) 3 Hare 100).

For this reason, if the passenger’s injuries and other losses are serious, it will clearly be very unwise for the passenger to be represented by the same solicitors as the driver of the same vehicle.

Standing back from that, however, we need to remind ourselves that on the fast track, injuries are rarely very serious in nature. The whiplash reforms (Whiplash Injury Regulations 2021) will increasingly begin to bite, which will drastically reduce recoverable damages.

And in reality, a lot of passengers, where their injuries are not too serious, are never realistically going to be interested in suing the driver of the vehicle they were in, for the reason that the driver is all too often their ‘significant other’, a friend, or family member. Sometimes the passenger’s view about who is at fault will be just as strong as the driver’s (though for obvious reasons this is seldom a surprise).

So though I recall one Deputy District Judge who did make a big issue out of the conflict of interest point at the outset of a fast-track trial, realistically there is no problem with multiple claimants in an RTA, provided they are broadly speaking singing from the same hymn sheet on the evidential issues.

The slightly more vexing point emerges when one considers costs.

This article will consider the position for claims where the cause of action accrues before 1 October 2023 (to which the old costs regime under the old CPR 45 will apply), on or after 1 October 2023 (to which the new costs regime under the new CPR 45 will apply).

Multiple Claimant fixed costs where the cause of action is pre 1 October 2023

Though we now have a new fixed costs regime, we are likely to see cases under the old CPR 45 trundling through the county court for some time into the future.

The Protocol defines a “claim” as being

(6) ‘claim’ means a claim, prior to the start of proceedings, for payment of damages under the process set out in this Protocol;

The Protocol defines a “claimant” as

(7) ‘claimant’ means a person starting a claim under this Protocol unless the context indicates that it means the claimant’s legal representative;

Claims which no longer proceed under the Protocol are dealt with by Part IIIA of CPR45:

“45.29A

this section applies—(a) to a claim started under—(i) the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (‘the RTA Protocol’)
…
where such a claim no longer continues under the relevant Protocol or the Stage 3 Procedure in Practice Direction 8B…”

45.29B

Subject to rules 45.29F, 45.29G, 45.29H and 45.29J, and for as long as the case is not allocated to the multi-track, if, in a claim started under the RTA Protocol, the Claim Notification Form is submitted on or after 31st July 2013, the only costs allowed are—

(a) the fixed costs in rule 45.29C;
(b) disbursements in accordance with rule 45.29I.

45.29C

(1) Subject to paragraph (2), the amount of fixed costs is set out in Table 6B.

(2) Where the claimant—

(a) lives or works in an area set out in Practice Direction 45; and (b) instructs a legal representative who practises in that area, the fixed costs will include, in addition to the costs set out in Table 6B, an amount equal to 12.5% of the costs allowable under paragraph (1) and set out in Table 6B.

…

(4) In Table 6B—

(a) in Part B, ‘on or after’ means the period beginning on the date on which the court respectively—

(i) issues the claim;
(ii) allocates the claim under Part 26; or (iii) lists the claim for trial; and
…

TABLE 6B

The scenario we consider is where two or more claimants, in a fast-track trial of the sort referred to at C of Table 6B, both succeed and each recovers a separate award of damages.

They have been represented by the same solicitors in the proceedings, and then by the same counsel at trial.

All these claimants started their claims separately under the protocol. They all have sent Claims Notification Forms, each have obtained their own compliant medical evidence, and each has complied with the requirements of the protocol.

However, when it has come to issuing proceedings under CPR 7, they have issued their claim jointly. They are likely to have pleaded their Particulars of Claim in a single composite document, and issued only a single claim form. They have paid only one issue fee.

Judgment for the claimants has been handed down, and we get to costs:

A. Do the solicitors and counsel get an award of fixed costs under Table 6B per Claimant?

B. Or do they just get one award of fixed costs? (Presumably with the total damages of all the joined claimants added together being utilised to calculate the relevant total?)

C. Or perhaps do the solicitors get an award of fixed costs per claimant, but does hard-working, learned counsel only recover a single trial advocacy fee?

You’d think that if this question did not have an obvious answer, it would be of sufficiently wide application to have at least been appealed up to the High Court so we’d have a binding and authoritative judgment. But you’d be wrong. (At least, based on my researches as at the date of this article!).

What we do have is some conflicting authority at county court level:

In Neary v Bedspace Resource Ltd [2015] 12 WLUK 170 (4 December 2015), HHJ Pearce, taking the issue relatively briefly, came to conclusion “A” above:

“7. In my judgment, the correct answer to this issue can be discerned from the wording of Table 6B to CPR45.29C. It states that it deals with the fixed that are recoverable “where a claim no longer continues under the RTA protocol”. Under the protocol there is no possibility of including the claim of more than one injured person in one claim. The protocol provides for a claim notification form which can only relate to a single person, and throughout the protocol the assumption is that only a single Claimant is involved. Table 6B cannot in my judgment properly be interpreted to mean the costs of the claim in any more broad sense than that contemplated by the protocol, that is to say the cause of action of an individual.

8. Accordingly in my judgment, the Claimants are each entitled to recover the fixed fee and the advocacy fee.”

In Melloy & Anor v UK Insurance Ltd [2022] EW Misc 4 (CC) (25 February 2022), HHJ Glen, in an attractively succinct judgment on this single issue, also comes to conclusion “A” above:

“10. … In my judgment (and in comity with HHJ Pearce) the expressions ‘claim’ and ‘claimant’ have an autonomous meaning for the purposes of Part IIIA of CPR45. They refer to the claim started by, and the claimant who submitted, the CNF and not to the claim or claimant in the proceedings. This conclusion is it seems to me supported by such authority as exists.

…

13. In my judgment, where there are two or more claimants in proceedings for damages that fall within Part IIIA of CPR45, each such claimant (assuming that they have each submitted a CNF) is separately entitled to the costs set out in Table 6B.”

So far so good (if you are a claimant, that is, or perhaps more germanely, a claimant lawyer…).

However, sandwiched between these two authorities we have the judgment of HHJ Hand QC, in Karnicka v Zborek [2018] 2 WLUK 295 (13 February 2018). In terms of its general style, this judgment is chalk to HHJ Glen’s cheese; far more discursive, a great deal longer. It has a rather more appellate style to it, but importantly it is still a first-instance decision. He came to conclusion “C” above:

“37. Nevertheless, I have reached the conclusion that when the costs in cases fall within CPR Part 45 there should be a broad equivalence between similar concepts in the different Sections. I think, for the reasons expressed above that broad equivalence would be served by accepting that Mr Salisbury is right that each Claimant can recover separate fixed costs under CPR Part 45.29C Table 6B sub-table C but that he is wrong that each Claimant can recover a separate trial advocacy fee [under] CPR Part 45.29C Table 6B sub-table D.”

HHJ Hand QC generally agreed with the reasoning in Neary:

“28. … The reasoning in Neary (see above at paragraph 11 of this judgment) is that because the CNF procedure only allows for one individual’s claim to be entered into the Protocol via one CNF there can be no multiple claims in the Protocol and, in turn, that must mean that the word “claims” in the heading to Section IIIA relates to the individual’s claim “which no longer continues under the Protocol”. If that is so, then “claim” or “claims” must have the same meaning and must relate to the individual’s claim irrespective as to whether multiple claims have been issued via one claim form as provided for by CPR Part 7.3 (see above at paragraph 4 of this judgment). I find that persuasive.”

There then follows some consideration of paragraph 2.7 of CPR PD 45 in HHJ Hand QC’s judgment, which reads:

“Multiple claimants

2.7 Where two or more potential claimants instruct the same legal representative, the provisions of the section apply in respect of each claimant.”

This author respectfully suggests that because this paragraph appears in a section in the section of the Practice Direction entitled “Section II – Road Traffic Accidents: Fixed Recoverable Costs in Costs-Only Proceedings”, and we are dealing with Section IIIA of CPR 45, CPR 45 PD 2.7 does not really have any application. As far as I can see, the judgment of HHJ Hand QC appears to agree with that position.

So how did HHJ Hand QC conclude that multiple trial fees were not recoverable, but multiple packages of solicitor’s fixed costs were? The answer appears from paragraph 33 of his judgment:

“33. Nevertheless, whilst I find it impossible to find precise equivalence between the different Sections of CPR Part 45 I am loath to embrace totally Mr Salisbury’s argument that a compartmentalised view of CPR Part 45 can be taken and I am not prepared simply to shrug my shoulders and say that what happens in one context is irrelevant to another. I am particularly reluctant to accept that, whilst the process under Section VI is on the basis that only one advocates fee can be recovered irrespective of the multiplicity of parties represented, under Section IIIA, in what might be a very similar forensic exercise, the advocate can recover a greater sum when representing the same number of parties.

…

35. But what makes no sense to me is that an advocate in a Section IIIA trial is entitled to two or more advocacy fees, according to the number of parties represented, but an advocate in a Section VI case is not. Whilst there is no prohibition on the award of two (or more) sets of “trial advocacy fees” in Section IIIA, as there is in Section VI of “fast track trial costs”, I think an interpretation that resulted in an advocate in a Section VI case, with the parameters of the instant case, receiving £690.00 as “fast track trial costs” but an advocate in a Section IIIA case, with the same parameters, receiving £1420.00 (i.e. a fee of £710.00 in respect of each Claimant represented) as the “trial advocacy fee” would be so odd that it cannot have been the intention of those who drafted Section IIIA to produce such an outcome by sanctioning the recovery of two “trial advocacy fees” under it in respect of the same trial.

36. I accept that such a conclusion means reading a lot that is not currently there into CPR Part 45.29C. In another issue, which arose in the same context of CPR Part 45.29, the Court of Appeal was prepared to read words into CPR Part 45.29B in Esure Services Limited v Khan [2016] EWCA Civ 1109 (see paragraphs 35, 54 and 56 of the judgment of Briggs LJ). The addition in the instant case would need to be more substantial than it was in the Esure case because it would require reading into CPR Part 45.29C, CPR 45.40 and CPR Part 38(3) (making appropriate alterations to take account of the different expressions used in those Parts as compared with CPR Part 45.29). I also acknowledge not having the same clarity that the omission here results from inadvertence as Briggs LJ had about the omission in Esure and I have similar hesitation to that he expressed at paragraph 35 of his judgment about supplementing the text.”

Essentially, HHJ Hand QC opted to purposively apply an overall equivalency of approach to recovery of the trial fee under Table 6B Part IIIA of CPR 45, and recovery of the trial fee under under Table 9 of Part VI. Part VI specifically states at CPR 45.40

“45.40—(1) Where the same advocate is acting for more than one party— (a)  the court may make only one award in respect of fast track trial costs payable to that advocate”.

CPR 45 Part IIIA, ought in theory to provide a definitive answer to this question without any exercise of judicial discretion. There can really, only be one correct answer. This author is of the view that HHJ Pearce and HHJ Glen are right, and that, respectfully, HHJ Hand QC is wrong.

I anticipate a cynic would probably say that I would say that. But there it is.

Here are my reasons:

a. Suggesting that the discreet sections of CPR 45 need to be read concurrently sounds superficially attractive, but is an incorrect approach. CPR 45.40 falls under Part VI, and Table 6B falls under Part IIIA. The concepts of the RTA Protocol, for example, have no cross-application to Part VI. The conclusion reached by HHJ Hand QC appears to have been based almost entirely on cross-referencing from Part VI of CPR 45, which does not seem to be what CPR 45 Part IIIA, or the rule as a whole, envisages.

b. In the same vein, it seems to have been tacitly accepted by counsel in Neary and Melloy that IIIA is a self-contained regime, because arguments on CPR 45.40 were not raised. It is of course possible that these points were overlooked!

c. HHJ Hand QC’s judgment may be criticised for appearing to take into account the attractiveness of the outcomes proposed before him, as opposed to a strict focus on construction. As HHJ Glenn puts it in his judgment in Melloy:

… it is of the essence of any fixed costs regime that there will be swings and roundabouts. The outcome cannot inform the construction except in the most exceptional case (as in Qader v. Esure Services Ltd. [2016] EWCA Civ 1109).

d. The fact remains that Part IIIA of CPR 45 does contain an answer to this question of multiple claimants’ cost recovery without the need to resort to other parts of the rule designed to deal with other types of claims. Indeed, paragraph 36 of HHJ Hand QC acknowledges that his approach is rather purposive. There is of course a degree of artificiality in each Claimant recovering a separate package of fixed costs, but there is no compelling reason, on construction, why this convenient fiction should not persist to the application of trial fees.

e. In this regard, it might be argued that HHJ Hand QC’s approach is internally inconsistent. Once he reached the decision to allow for a separate package of fixed costs per Claimant, he ought to have seen this through to the conclusion invited by Table 6B, and awarded a separate trial fee per Claimant.

f. Table 6B A introduces the idea of an individual ‘claimant’ under the Protocol, not an overall set of proceedings which may involve multiple claimants. This echoes the reasoning of HHJ Glen in Melloy.

g. Quite simply, the application of ‘Occam’s Razor’ in Melloy (and Neary) renders HHJ Glen’s reasoning considerably more attractive, and in this author’s view, correct! The less one needs to ‘read into’ the rules, the better.

Multiple Claimant Fixed costs where the cause of action is on or post 1 October 2023

The position is now somewhat clearer. There is now a rule in the new CPR 45 dealing precisely with this scenario:

Entitlement to costs – more than one claimant

45.5.—(1)  Unless paragraph (2) or paragraph (4) applies, where—

(a) fixed costs are payable under Section VI or Section VII of this Part; and

(b) orders for costs are made in favour of two or more claimants,

each claimant is entitled to the costs of their own claim in accordance with the applicable rules in this Part.

Pausing there for a moment, Section VI of the new CPR 45 deals with fast-track costs, and so appears to apply here.

The rule continues:

(2) Paragraph (1) does not apply where the claim is for a remedy to which the claimants are jointly entitled, and they are joined to the proceedings to comply with rule 19.3.

(3) Paragraph (4) applies where fixed costs are payable under Section VI or Section VII and—

(a) a legal representative with conduct of the litigation acts for more than one claimant in the proceedings;

(b) each of those claimants has a separate claim against the defendant;

(c) an order for costs is made in favour of two or more of those claimants; and

(d) the court has ordered that paragraph (4) shall apply.

(4) Where this paragraph applies—

(a) the claimants in whose favour an order for costs is made shall only be entitled to one set of fixed costs;

(b) the amount of the fixed costs to which those claimants are entitled is the sum of the allowable costs and the further amounts calculated in accordance with paragraph (5) and, where applicable, paragraph (7); and

(c) those claimants are jointly entitled to any costs so ordered.

(5) A further amount equal to 25% of the allowable costs is to be added for each additional claimant in whose favour the order for costs is made.

(6) In paragraph (4), ‘the allowable costs’—

(a) means—

(i) the applicable costs payable to the claimant in respect of whom the damages of highest value are agreed or awarded; or(ii) where paragraph (i) would apply to two or more claimants, the applicable costs payable to whichever one of those claimants their legal representative chooses;

(b) does not include any additional costs under rule 36.24 or increased costs under rule 45.13(2); but

(c) may include the relevant trial advocacy fees if applicable; and

(d) excludes any disbursements.

(7) In addition to the allowable costs under paragraph (4), those claimants who meet the criteria are entitled to London weighting.

(8) Where one or more of the claimants referred to in paragraph (4) is entitled either to additional costs under rule 36.24(5) or increased costs under rule 45.13(2), or to both, the percentage increases for which those rules provide must be calculated by applying the relevant percentage to such proportion of the amount referred to in paragraph (4)(b) as reflects the proportion which each claimant so entitled bears to the total number of claimants to which paragraph (4) applies.

This is quite a complicated rule.

The effect of the new CPR 45.5(3) appears to be that in the scenario described above (ie where one solicitor, and one barrister, represent several claimants in an RTA fast track matter), the court can order for only one set of fixed costs to apply (CPR 45.5 (3)(d)).

The court, curiously, does not appear obliged to do that. No guidance is provided about when it may or may not be appropriate for the court to order under CPR 45.5 (3)(d).

If the court does not order under CPR 45.5 (3)(d), it appears that each Claimant can claim their own package of fixed costs separately (CPR 45.5(1), including, presumably, the relevant trial advocacy fee per claimant.

If the court does order under CPR 45.5 (3)(d) (and it appears to the author that this will likely be the course many judges would take in an RTA with multiple claimants), then:

a. the court either identifies the claimant who has been awarded the highest damages figure or in circumstances where two (or more) claimants have been awarded the same ‘highest’ sum, the legal representatives must elect a lead claimant (CPR 45.5 (6)).

b. the fixed costs for that claimant alone are calculated.

c. the claimants’ representatives are then entitled to an additional 25% of those fixed costs per extra claimant (ie, if there were three claimants, their representative would be entitled to 1.5 times the total of the fixed costs which would be awarded to the claimant who had recovered the most) (CPR 45.5(5)).

d. This includes trial advocacy fees, but excludes disbursements (CPR 45.5(6)).

So the rule clearly recognises the need to remunerate additional work per claimant but is substantially less generous than the pre-October 2023 position, if Melloy and Neary are correct.

The draftsman obviously felt the need to address the issue specifically and to significantly alter the position under the old CPR.

What interests me is why the rules opted not to take an approach where the aggregate damages of all claimants were utilised to calculate the fixed costs, but rather to just calculate what the fixed costs would be for a single lead claimant, and then add a fixed 25% uplift per extra claimant, no matter how much that extra claimant recovered (whether it be £10 or £10,000).

This approach, it seems to me, does not build in a recognition of how significant (or insignificant) an additional claimant’s claim might be when viewed in the round. But that’s just me…

It also remains to be seen what effect the rather permissive wording of CPR 45.5 (3)(d) will have. Only time will tell.

Henry Hawkesworth