Rule 46.5 of the Civil Procedure Rules governs the recoverability of costs by a litigant in person, such as yourself. This article breaks this down. For the avoidance doubt, references to “you” mean a litigant in person.
You can recover costs for the periods you are/were a litigant in person for:
a) Work carried out by you (that fall in the same categories of work that would have been allowed if the work had been done by a legal representative on your behalf);
b) Disbursements (that fall in the same categories of disbursements that would have been allowed if made by a legal representative on your behalf);
c) the payments reasonably made by you for legal services relating to the conduct of the proceedings; and
d) the costs of obtaining expert assistance in assessing the costs claim.
So, this could include travel costs to court and even photocopying. But note these are not normally recoverable by a solicitor.
Does it matter what claims track I am on?
Yes, the track does have a bearing. Your case will either be heard on the small claims track or the fast track. Please note, this article does not cover information about the tracks.
Small claims track - Costs recovery is limited
Fast track – if you are awarded costs and can prove financial loss (see below), you should be entitled to two thirds of the fixed fast track trial costs.
a) Work carried out by you
As explained above – you can recover costs for the same categories of work that would have been allowed if the work had been done by a legal representative on their behalf e.g. filing an application in court.
What are disbursements?
Disbursements are typically the fees of for example, counsel and experts instructed by you, court fees or even fees for serving documents. They can also include fees of interpreters, translators, process servers, surveyors and estate agents but not travel agents' charges.
So, for example, if you hire an expert (i.e. a gun specialist – note this is different from expert assistance that we go into below), it is likely you can recover the cost for this as this is also a cost that a legal representative would charge their client for and probably would be recoverable.
They might also include the fees of a lay person granted a right of audience or right to conduct litigation (see below).
What are not disbursements?
Disbursements for the very work that a legal representative (if instructed) would have done e.g. the fees of loss adjusters engaged by the defendant's insurers before solicitors were instructed, in corresponding with the insured and the claimant's solicitor, obtaining witness statements and dealing with documentation. These were all tasks that would normally be carried out by solicitors, if instructed.
The costs of this type of disbursements would usually be recoverable under either:
- “work carried out by you”; or
- “work carried out by a qualified lawyer who is not on the court record” – e.g. payment for legal services (see below).
Costs of lay persons
The fees of a “lay person granted a right of audience” are in principle recoverable from the opposing party as a disbursement.
The fees of a “lay person granted the right to conduct litigation” are not recoverable from the opposing party.
Who is a “lay person granted a right of audience”?
A person who is granted the right to appear before and address any court, including the right to call and examine witnesses. Though you yourself may be granted this right, you may have someone do this on your behalf.
Who is a “lay person granted the right to conduct litigation”?
Someone who is a protected party – i.e. a person who lacks capacity within the meaning of the Mental Capacity Act 2005 to conduct proceedings, who is unable to make decisions in relation to the matter by reason of an impairment or a disturbance of the functioning of the mind or brain, then they will someone conduct the litigation for that protected person. This may include a child too. They may not necessarily have a right of audience,
This article does not cover a McKenzie friend in detail but it is important to bear in mind when considering costs. In brief, you have the right to “reasonable assistance” from a McKenzie friend. This generally is a "lay person". However, in principle a practising lawyer who is not on the record could act as a McKenzie friend.
McKenzie friends may assist you in court by making notes, quietly making suggestions and giving advice. However, they cannot address the court. They may assist you with advice or administrative matters out of court, but cannot manage or conduct the case, or sign court documents. Fees in this respect are not recoverable.
Once they are granted either of the rights above e.g. right of audience/right to conduct litigation, they are known as an “exempt person” under the relevant legislation, rather than a McKenzie friend and any fees are then recoverable
More information can be found here: http://mckenzie-friend.org.uk/index.html
c) Payment for Legal Services
Legal services are not defined but has been interpreted to mean partial legal services i.e. legal advice or assistance that falls short of full representation, or services provided by or under the supervision of a qualified lawyer. So, if you seek legal advice and assistance from a non-lawyer, you cannot recover the cost under this.
d) Expert assistance in costs claims
These are costs for obtaining expert assistance in assessing costs claims.
Who qualifies as an expert:
(c) Fellow of the Institute of Legal Executives;
(d) Fellow of the Association of Costs Lawyers;
(e) law costs draftsman who is a member of the Academy of Experts;
(f) law costs draftsman who is a member of the Expert Witness Institute.
To prove loss, you should produce any written evidence relied on to support that claim to the court and serve a copy of that evidence on any party against whom you seek costs at least 24 hours before the hearing at which this issue may be decided.
Amount of costs allowed for work by you/proving financial loss
The amount of costs to be allowed for any item of work claimed, will be –
a) where you can prove financial loss, the amount that you can prove to have been lost for time reasonably spent on doing the work; or
b) where you cannot prove financial loss, an amount for the time reasonably spent on doing the work at the rate set out in Practice Direction 46 of the rules.
The rate from 6 April 2015 was £19 per hour and is still applicable as of March 2018. Financial loss is a quantifiable loss that you have suffered as a consequence the time you spend on the litigation.
Note. There is a cap – as said above, you cannot recover more than two thirds of the amount that would have been allowed had you been represented (except in the case of disbursements).
A costs assessment is required. This should cover:
· what items of work were done by you and what time was spent on those items.
· in respect of each item, what time it was reasonable for you to spend (see below).
· if all the items of work for which costs are recoverable had been undertaken by a solicitor, what would a solicitor's reasonable charges have been for doing such work.
You should prove financial loss claimed (keep receipts of your expenses) with written evidence and serve it on the other side at least 24 hours before an assessment hearing. Also see recovering pro bono costs below.
What do you mean by item of work?
This can be things like submitting applications to court for example, an application for summary judgment, or drafting documents for example, a defence.
What time is reasonable?
The amount of costs allowed for any item of work is related to their "time reasonably spent" on the work. There is conflicting case law on whether a litigant in person should be:
· Allowed more time, where appropriate, than would be allowed to a solicitor for the same task
· Limited to the time which would have been spent by a solicitor
You cannot always predict what a court will do, but it may be more inclined to allow extra time if appropriate. It will really depend on the circumstances.
There is also a requirement that the court should only allow costs that are proportionate to the matters in issue which you should bear in mind. So, don’t expect to be able to recover thousands of pounds of costs for something relatively simple.
Recovering Pro Bono Costs
What is pro bono costs?
Pro bono costs are just like normal costs identified above and are applicable for any period in which free legal representation was given i.e. where you are represented, whether wholly or partly, by a lawyer(s) working free of charge (pro bono). You must successfully win the case to be eligible.
The Access to Justice Foundation
Pro bono costs can be claimed from the losing party and must be paid to The Access to Justice Foundation. They support free legal advice to those most in need by raising and distributing funds to advice agencies and other legal services throughout the country e.g. AdviceUK and the Bar Pro Bono Unit. Note that he Lord Chancellor prescribes the charity and this may be changed in the future.
Pro bono costs order
These pro bono costs orders are available in the:
· County Court
· High Court;
· Court of Appeal; and
· The Supreme Court
You can find more information here: http://www.atjf.org.uk/pro-bono-costs-orders.html.
You are not required to file and exchange costs budgets unless the court orders otherwise. Case law suggests you may opt to file and serve a budget. Briefly, a costs budgets states likely cost to be incurred at each stage in the litigation process. The deadline for filing and exchange of costs budgets will be stated in the notice of proposed allocation sent to the parties after the defence is filed.
If you choose to instruct a solicitor after the costs management conference (for which the costs budget is submitted), there is no specific rule which requires you to file and serve a costs budget. However, there may be scenarios which could mean filing is required. Your solicitor should be able to advise to on this.
This article is for information purposes only and should not be used as legal advice.