Octoesse LLP v Trak Special Projects Limited [2016] EWHC 3180 (TCC), Judgment 15 December 2016

The judge disagreed that Agassi is authority for the general proposition that the costs of claims consultants cannot be recovered by a litigant in person. The relevant question is whether the consultant’s costs are recoverable as a disbursement.

The case concerned a dispute arising out of a commercial construction project between the claimant employer and defendant contractor.  Following completion of the project Octoesse withheld the sum of £89,250 pursuant to a pay less clause.  An adjudicator determined the pay less clause invalid and asked Octoesse to pay Trak £59,991.83 plus interest and some other sums.  Octoesse then commenced Part 8 proceedings challenging the validity of the pay less notice, and the enforceability of the adjudicator’s award.  Mrs Justice Jefford found in favour of Trak and ordered payment of the sums awarded by the adjudicator.

Track sought its costs.  Track had engaged counsel through the direct access scheme, and had also engaged construction claims consultants.  Octoesse took no issue with the recoverability or amount of counsel’s fees but argued that the costs of the claims consultants were not recoverable as they were neither in relation to work done by a litigant in person nor disbursements which would have been allowed if made by a legal representative (relying on Agassi v Robinson (Inspector of Taxes) (No.2) [2005] EWCA Civ 1507).

The judge disagreed that Agassi is authority for the general proposition that the costs of claims consultants cannot be recovered. The relevant question is whether the consultant’s costs are recoverable as a disbursement. That question in turn depends on whether the work would normally be done by solicitors.  In some circumstances, a solicitor may well rely on a claims specialist to carry out work even if the work is broadly ‘solicitor work’.

The judge found that costs incurred by claims consultants assisting a litigant in person will usually be recoverable on adjudication enforcement proceedings, assuming the same consultants represented the party in the adjudication.  In this case the costs were incurred in defending Part 8 proceedings that went to the substance of the adjudication dispute and it would be unrealistic to treat these proceedings differently from enforcement proceedings brought under a summary judgment application.  It would have been practical and normal for solicitors to seek assistance from those who had acted in the adjudication proceedings and were familiar with the factual background had they been instructed.  However, not all of the consultant’s costs were recoverable because some of the work was of a kind that, had solicitors been instructed, would not ordinarily have been carried out by the consultants.

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