The costs of claims consultants who handled a construction adjudication were recoverable as disbursements even though they were dealing with matters that would be considered “solicitors’ work”, the High Court has ruled.
The dispute in Octoesse LLP v Trak Special Projects Ltd  EWHC 3180 (TCC) concerned an adjudication which arose out of construction project, with the costs issue focused on whether the defendant could recover the costs of claims consultant Wellesley Construction Services.
Wellesley’s role involved considering the claimant’s claim and evidence, preparing the defence and a witness statement, instructing counsel, liaising with the court, and attending court.
The claimant argued that Trak was essentially a litigant in person (LiP) and, citing the well-known Agassi case involving the famous ex-tennis player, said that Wellesley’s work was neither work done by the LiP nor disbursements which would have been allowed if made by a legal representative, as per the CPR.
Mrs Justice Jefford found that Agassi was not authority for a general proposition that costs of claims consultants or other consultants who give advice and support in litigation can never be recovered.
She said Agassi meant that where a LiP sought to recover the costs of a consultant’s assistance, the relevant question was whether, in the particular instance, the consultant’s costs were recoverable as a disbursement.
“That question is answered by posing and answering the question whether those costs would have been recoverable as a disbursement if it had been made by a solicitor. Costs would be recoverable as a disbursement by solicitors if the work is such as would not normally be done by solicitors.
“But there nonetheless may be specialist assistance the cost of which would be recoverable.”
The judge said that it was in this area of specialist assistance where there was “a difficult dividing line between what is and is not recoverable”. But she said that in particular circumstances, a solicitor might well normally not carry out work himself but rely on a specialist, even though the work in its broad description might be “solicitors’ work”, such as instructing counsel.
There were, Jefford J continued, distinct features of adjudication and adjudication enforcement proceedings, noting that claims or other consultants often represented parties in the adjudication process.
“Even if solicitors are instructed on the enforcement proceedings, and particularly where they have not acted in the adjudication, it would, therefore, be common practice, and in many cases necessary, for them to seek the assistance of the consultants involved in the adjudication.”
Having considered other cases where consultants’ fees have been recovered, Jefford J concluded: “In my judgment, costs incurred by claims consultants assisting a litigant in person will usually be recoverable on adjudication enforcement proceedings, assuming that the same consultants have represented the party in the adjudication.
“Given the particular aspects of adjudication to which I have referred… such costs will usually fall within the meaning of disbursements in CPR part 46.5(3)(a).”
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