OpenLegislation

Rule 21.12 Costs and expenses incurred by a litigation friendF1F33

England and Wales

(1)

F2In proceedings to which rule 21.11 applies, a litigation friend who incurs F3costs or expenses on behalf of a child or protected party in any proceedings is entitled on application to recover the amount paid or payable out of any money recovered or paid into court to the extent that it—

(a)

has been reasonably incurred; and

(b)

is reasonable in amount.

(F42)

Costs recoverable F5in respect of a child under this rule are limited to—

(a)

costs F6... which have been assessed by way of detailed assessment F7under rule 46.4(2); F8...

(b)

costs incurred F9... by way of success fee under a conditional fee agreement or sum payable under a damages based agreement in a claim for damages for personal injury where the damages agreed or ordered to be paid do not exceed £25,000, where such costs have been F10summarily assessed under rule 46.4(5) F11; or

(F12c)

costs incurred where a detailed assessment of costs has been dispensed with under rule 46.4(3) in the circumstances set out in Practice Direction 46.

(F133)

Expenses may include all or part of—

(a)

F14a premium in respect of a costs insurance policy (as defined by section 58C(5) of the Courts and Legal Services Act 1990); or

(b)

interest on a loan taken out to pay F15a premium in respect of a costs insurance policy or other recoverable disbursement.

(4)

No application may be made under F16this rule for F17costs or expenses that —

(a)

are of a type that may be recoverable on an assessment of costs payable by or out of money belonging to a child or protected party; but

(b)

are disallowed in whole or in part on such an assessment.

F18(Costs and expenses which are also “costs” as defined in rule 44.1(1) are subject to rule 46.4(2) and (3).)

(5)

In deciding whether the F19costs or expenses were reasonably incurred and reasonable in amount, the court will have regard to all the circumstances of the case including the factors set out in rule F2044.4(3) F21and rule 46.9.

(6)

When the court is considering the factors to be taken into account in assessing the reasonableness of the F22costs or expenses, it will have regard to the facts and circumstances as they reasonably appeared to the litigation friend or to the child’s or protected party’s legal representative F23or deputy when the F24cost or expense was incurred.

(7)

F25Subject to F26paragraph (8), where the claim is settled or compromised, or judgment is given, on terms that an amount not exceeding £5,000 is paid to the child or protected party, the total amount the litigation friend may recover under paragraph (1) must not exceed 25% of the sum so agreed or awarded, unless the court directs otherwise. Such total amount must not exceed 50% of the sum so agreed or awarded.

(8)

The amount which the litigation friend may recover under paragraph (1) in respect of costs must not (in proceedings at first instance) exceed 25% of the amount of the sum agreed or awarded in respect of—

(a)

general damages for pain, suffering and loss of amenity; and

(b)

damages for F27past financial loss,

net of any sums recoverable by the Compensation Recovery Unit of the Department for Work and Pensions.

(9)

F28Except in a case to which F29Section IV, Section VI, Section VII or Section VIII of Part 45 applies, and F30where a claim under rule F3145.9 or 45.10 has not been made, no application may be made under this rule for a payment out of the money recovered by the child or protected party until the costs payable to the child or protected party have been assessed or agreed.

(F3210)

A litigation friend must support a claim for payment from a fund of costs or expenses by filing a witness statement setting out, so far as applicable—

(a)

the nature and amount of the costs or expenses and the reason they were incurred;

(b)

a copy of any conditional fee or damages based agreement;

(c)

a copy of any risk assessment by reference to which any success fee was determined;

(d)

the reasons why the particular funding model was selected;

(e)

the advice given to the litigation friend on funding arrangements;

(f)

a copy bill or informal breakdown of the solicitor and own client base costs incurred;

(g)

details of any costs agreed, recovered or fixed costs recoverable by the child; and

(h)

an explanation of the amount agreed or awarded for—

(i)

general damages for pain, suffering and loss of amenity; and

(ii)

damages for past financial loss, net of any sums recoverable by the Compensation Recovery Unit or the Department for Work and Pensions.

Annotations

Textual amendments

F1

Pt. 21 substituted (1.10.2007) by The Civil Procedure (Amendment) Rules 2007 (S.I. 2007/2204), rule 1, Sch. 2

F2

Word in rule 21.12(1) substituted (6.4.2023) by The Civil Procedure (Amendment) Rules 2023 (S.I. 2023/105), rules 1(1), 14(13)(b)

F3

Words in rule 21.12(1) inserted (6.4.2015) by The Civil Procedure (Amendment No. 8) Rules 2014 (S.I. 2014/3299), rules 2(c), 5(a)(ii)

F4

Rule 21.12(2): rule 21.12(1A) renumbered as rule 21.12(2) (6.4.2023) by The Civil Procedure (Amendment) Rules 2023 (S.I. 2023/105), rules 1(1), 14(13)(c)

F5

Words in rule 21.12(1A) inserted (6.4.2019) by The Civil Procedure (Amendment) Rules 2019 (S.I. 2019/342), rules 1(1), 4(a)(i)

F6

Words in rule 21.12(1A)(a) omitted (6.4.2019) by virtue of The Civil Procedure (Amendment) Rules 2019 (S.I. 2019/342), rules 1(1), 4(a)(ii)

F7

Word in rule 21.12(2)(a) substituted (6.4.2023) by The Civil Procedure (Amendment) Rules 2023 (S.I. 2023/105), rules 1(1), 14(13)(c)(i)

F8

Word in rule 21.12(1A)(a) omitted (1.10.2021) by virtue of The Civil Procedure (Amendment No. 4) Rules 2021 (S.I. 2021/855), rules 1(1), 4(2)(a)

F9

Words in rule 21.12(1A)(b) omitted (6.4.2019) by virtue of The Civil Procedure (Amendment) Rules 2019 (S.I. 2019/342), rules 1(1), 4(a)(iii)

F10

Words in rule 21.12(2)(b) substituted (6.4.2023) by The Civil Procedure (Amendment) Rules 2023 (S.I. 2023/105), rules 1(1), 14(13)(c)(ii)

F11

Word in rule 21.12(1A)(a) substituted (1.10.2021) by The Civil Procedure (Amendment No. 4) Rules 2021 (S.I. 2021/855), rules 1(1), 4(2)(b)

F12

Rule 21.12(1A)(c) inserted (1.10.2021) by The Civil Procedure (Amendment No. 4) Rules 2021 (S.I. 2021/855), rules 1(1), 4(2)(c)

F13

Rule 21.12(2)-(8) renumbered as rule 21.12(3)-(9) (6.4.2023) by The Civil Procedure (Amendment) Rules 2023 (S.I. 2023/105), rules 1(1), 14(13)(d)

F14

Words in rule 21.12(2)(a) substituted (1.4.2013) by The Civil Procedure (Amendment) Rules 2013 (S.I. 2013/262), rules 2, 7(b)(i)(aa) (with rule 22)

F15

Words in rule 21.12(2)(b) substituted (1.4.2013) by The Civil Procedure (Amendment) Rules 2013 (S.I. 2013/262), rules 2, 7(b)(i)(bb) (with rule 22)

F16

Word in rule 21.12(3) substituted (6.4.2015) by The Civil Procedure (Amendment No. 8) Rules 2014 (S.I. 2014/3299), rules 2(c), 5(c)(i)

F17

Words in rule 21.12(3) inserted (6.4.2015) by The Civil Procedure (Amendment No. 8) Rules 2014 (S.I. 2014/3299), rules 2(c), 5(c)(ii)

F18

Words in rule 21.12 substituted (6.4.2015) by The Civil Procedure (Amendment No. 8) Rules 2014 (S.I. 2014/3299), rules 2(c), 5(c)(iii)

F19

Words in rule 21.12(4) inserted (6.4.2015) by The Civil Procedure (Amendment No. 8) Rules 2014 (S.I. 2014/3299), rules 2(c), 5(d)(i)

F20

Word in rule 21.12(4) substituted (1.4.2013) by The Civil Procedure (Amendment) Rules 2013 (S.I. 2013/262), rules 2, 7(c) (with rule 22)

F21

Words in rule 21.12(4) inserted (6.4.2015) by The Civil Procedure (Amendment No. 8) Rules 2014 (S.I. 2014/3299), rules 2(c), 5(d)(ii)

F22

Words in rule 21.12(5) inserted (6.4.2015) by The Civil Procedure (Amendment No. 8) Rules 2014 (S.I. 2014/3299), rules 2(c), 5(e)(i)

F23

Words in rule 21.12(6) inserted (6.4.2023) by The Civil Procedure (Amendment) Rules 2023 (S.I. 2023/105), rules 1(1), 14(13)(e)

F24

Words in rule 21.12(5) inserted (6.4.2015) by The Civil Procedure (Amendment No. 8) Rules 2014 (S.I. 2014/3299), rules 2(c), 5(e)(ii)

F25

Words in rule 21.12(6) substituted (6.4.2015) by The Civil Procedure (Amendment No. 8) Rules 2014 (S.I. 2014/3299), rules 2(c), 5(f)

F26

Words in rule 21.12(7) substituted (6.4.2023) by The Civil Procedure (Amendment) Rules 2023 (S.I. 2023/105), rules 1(1), 14(13)(f)

F27

Words in rule 21.12(8)(b) substituted (6.4.2023) by The Civil Procedure (Amendment) Rules 2023 (S.I. 2023/105), rules 1(1), 14(13)(g)

F28

Words in rule 21.12(8) substituted (6.4.2019) by The Civil Procedure (Amendment) Rules 2019 (S.I. 2019/342), rules 1(1), 4(b)

F29

Words in rule 21.12(9) substituted (1.10.2023) by The Civil Procedure (Amendment No. 2) Rules 2023 (S.I. 2023/572), rules 1(1), 7(2)(a) (with rule 2)

F30

Word in rule 21.12(9) inserted (6.4.2023) by The Civil Procedure (Amendment) Rules 2023 (S.I. 2023/105), rules 1(1), 14(13)(h)

F31

Words in rule 21.12(9) substituted (1.10.2023) by The Civil Procedure (Amendment No. 2) Rules 2023 (S.I. 2023/572), rules 1(1), 7(2)(b) (with rule 2)

F32

Rule 21.12(10) inserted (6.4.2023) by The Civil Procedure (Amendment) Rules 2023 (S.I. 2023/105), rules 1(1), 14(13)(i)

F33

Words in rule 21.12 heading substituted (6.4.2023) by The Civil Procedure (Amendment) Rules 2023 (S.I. 2023/105), rules 1(1), 14(13)(a)

Notes on Part 21

Textual amendments

F2

Words in Pt. 21 Table of Contents substituted (6.4.2023) by The Civil Procedure (Amendment) Rules 2023 (S.I. 2023/105), rules 1(1), 14(1)

Modifications

C1

Pt. 21 applied (1.11.2009) by The Water Industry (Special Administration) Rules 2009 (S.I. 2009/2477), rules 2, 97