There are now conflicting authorities as to what costs will be awarded where a claim arising out of an RTA brought by a child Claimant (via a litigation friend in the usual way) settles for less than £1,000. Will costs be awarded on the small, fast or multi-track basis? Aurangzeb v Walker in January 2009 held that only small track costs would be awarded, (which would make such cases generally uneconomic to pursue), but Dockerill v Tullett in September 2009 held that multi-track costs should be awarded.

There are points in favour of both authorities: Aurangzeb v Walker was a reserved judgment of Master Rogers sitting as a Costs Judge in the High Court Costs Office, on appeal from a District Judge in the Peterborough County Court. Dockerill v Tullett is a more recent (unreserved) decision of HH Oliver–Jones Q.C. (who sat on the Civil Procedure Rules Committee) sitting as a Birmingham County Court Judge, on appeal from a District Judge in the same court.

Both cases involved a child injured in a minor road accident, and in both cases damages were agreed by negotiation at less than £1,000, without court proceedings previously being issued. The key point in both cases was that the parties had agreed that the Defendant would pay costs, but had not agreed on what basis or track. In Aurangzeb v Walker a parental indemnity was used, (although not in Dockerill v Tullett) but the court in Aurangzeb made it clear that this did not affect the outcome.

Master Rogers in Aurangzeb followed M Coles v S. Keklic in the Liverpool County Court (30 th June 2008), but in Dockerill v Tullett the Judge ruled that multi-track costs applied, because:

It is unclear as to whether the County Court Judge in Dockerill v Tullett was referred to Master Roger’s decision in Aurangzeb v Walker (it appears not). It is similarly unclear as to whether the effect of CPR Part 8 Rule 9(c) (that Part 26 does not apply and that the claim must be treated as allocated to the multi-track), was argued before Master Roger in Aurangzeb v Walker (although it was referred to at Para. 42).

Very respectfully, we think that the reasoning in Dockerill v Tullett appears to be the correct approach, but what is now even clearer than ever is that when settling a claim brought by a minor it is vital to specify the exact basis on which costs will be assessed eg. “the defendant will pay the Claimant’s costs to be assessed on the multi-track basis”. Hopefully matters will be clarified by higher authority in due course.

Click here for a full copy of Aurangzeb v Walker and click here for Dockerill v Tullett