Tom Emslie-Smith explores the implications of Aldred v Cham

Published: 20/11/2019 | Costs, News, Newsletters, Personal Injury

Aldred v Cham [2019] EWCA Civ 1780

The Court of Appeal has recently handed down judgment in Aldred v Cham [2019] EWCA Civ 1780, which concerns the disbursements that can be recovered in cases that start life under one of the pre-action protocols for low value personal injury (RTA, EL or PL), but which cease to continue under the protocol process – most often because of a denial of liability. This applies to almost all Fast Track personal injury cases.

CPR 45.29I provides a fairly restrictive list of disbursements that can be claimed. On the one hand this poses a problem for Claimants, who from time to time incur additional costs as a necessary part of litigating their claims. For example – the translation fees of a non-English speaking Claimant, or counsel’s advice on quantum for an infant settlement hearing, neither of which are specifically named as recoverable disbursements.

On the other hand, Defendants in Fast Track cases will be eager to insist that costs are kept proportionate to the value of the claims, and to resist any expansion of the list of disbursements to which they would ordinarily be exposed.

So it is that parties often find themselves arguing over the scope and extent of the “catch all” provision in CPR 45.29I(2)(h), which allows the Court to award,

“any other disbursement reasonably incurred due to a particular feature of the dispute.”

How widely should this phrase be construed?

The Decision

In Aldred v Cham, the disbursement in question was an infant advice on quantum for an approval hearing, which is necessary in almost any Fast Track case involving a child that is settled prior to trial.

The Court of Appeal held that this was not recoverable under the fixed costs regime because it was not incurred “due a particular feature of the dispute”. On the Court’s interpretation of this phrase, the personal characteristics of the parties do not constitute particular features of the dispute. So the fact that the Claimant is a child is not a feature that renders the disbursement recoverable under this rule.

Examples of particular features of the dispute in RTA claims included: how the accident happened, whether the defendant was to blame for the accident, the nature, scope and extent of the injuries and their consequences, and other matters of that kind.

The Court of Appeal went on to say that even if such disbursements were referable to a particular feature of the dispute, under ordinary circumstances the infant advice still would not be recoverable under CPR 45.29I(2)(h) because counsels’ fees for this work would be covered by ordinary fixed recoverable costs under Table 6B in Part 45.


Certain classes of disbursement that are commonly incurred are now undoubtedly irrecoverable under the Part 45 fixed costs regime. The decision applies to translators’ fees just as it applies to infant advices.

Early indications are that the Court of Appeal’s decision is going to be appealed – unsurprisingly as it will have wide implications on the way that Claimants budget and fund low value personal injury claims.

In the meantime, when preparing to argue whether or not a particular disbursement can be recovered, representatives must consider whether the disbursement in question is linked to the issues in the case, e.g. does it help discern the facts or determine the extent of the Claimant’s losses.

Expenses that a Claimant has to incur simply as a requirement to litigate his or her case properly, no matter how reasonable or necessary, will not necessary be recoverable.

Author: Tom Emslie-Smith Farrars (