The Civil Procedure Rules 1998

Changes over time for: Section 21.12

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Changes to legislation:

There are currently no known outstanding effects for the The Civil Procedure Rules 1998, Section 21.12.

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[F1[F2Costs and expenses] incurred by a litigation friendE+W

21.12.—(1) [F3In] proceedings to which rule 21.11 applies, a litigation friend who incurs [F4costs 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.

[F5(2)] Costs recoverable [F6in respect of a child] under this rule are limited to—

(a)costs F7... which have been assessed by way of detailed assessment [F8under] rule 46.4(2); F9...

(b)costs incurred F10... 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 [F11summarily assessed under] rule 46.4(5) [F12; or]

[F13(c)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.]

[F14(3)] Expenses may include all or part of—

(a)[F15a 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 [F16a premium in respect of a costs insurance policy] or other recoverable disbursement.

[F14(4)] No application may be made under [F17this] rule for [F18costs 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.

[F19(Costs and expenses which are also “costs” as defined in rule 44.1(1) are subject to rule 46.4(2) and (3).)]

[F14(5)] In deciding whether the [F20costs 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 [F2144.4(3)] [F22and rule 46.9].

[F14(6)] When the court is considering the factors to be taken into account in assessing the reasonableness of the [F23costs 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 [F24or deputy] when the [F25cost or] expense was incurred.

[F14(7)] [F26Subject to [F27paragraph (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.

[F14(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 [F28past financial loss],

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

[F14(9)] [F29Except in a case to which [F30Section IV, Section VI, Section VII or Section VIII] of Part 45 applies, and [F31where] a claim under rule [F3245.9 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.

[F33(10) 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.]]

Textual Amendments

F1Pt. 21 substituted (1.10.2007) by The Civil Procedure (Amendment) Rules 2007 (S.I. 2007/2204), rule 1, Sch. 2