A recent Technology and Construction Court (TCC) case[1] confirmed that the costs of claims consultants which form part of adjudication enforcement proceedings can be recovered as disbursements. Senior associate Amira Khan explores the details.

Trak Special Projects Limited was successful in their enforcement of an adjudicator’s decision. Trak’s costs were summarily assessed. Included in the costs were costs incurred by Wellesley Construction Services Limited, a firm of construction claims consultants.

In the judgement, it was held that the best way to determine whether the consultant’s costs are recoverable is to ask if the consultant’s costs are recoverable as a disbursement. Specifically it is necessary to consider (1) whether the costs would be recoverable as a disbursement if they were incurred by a solicitor, and (2) if the work would be something not normally carried out by a solicitor. If the answer to both is yes, the costs may be recovered. It was also held that there may be instances where specialist assistance is required and that the cost of such specialist assistance would be recoverable.

There is, however, a distinction to be made between disbursements that would be recoverable if claimed by solicitors, and those which would be recoverable by a litigant in person.

Given the tight timeframes imposed by the TCC in adjudication enforcement cases, it is normal and also necessary for solicitors to seek the assistance of the consultants involved in the original adjudication proceedings. Because of the accelerated timetable, it would not be realistic to constrain what assistance might be required. Therefore, whilst solicitors would normally draft witness statements in connection with Court proceedings, in the circumstances of adjudication enforcement, it might also be normal for them not to do so and instead rely on those with specialist knowledge of not just the adjudication process generally, but of that particular adjudication.

Reference was also made to a case[2] in which similar issues were considered. In that case it was held that in regards to the assessment of claims consultants costs a “blanket approach” should not be adopted, but rather they should “be looked at on an item by item basis” rejecting the idea that claims consultants’ costs are not recoverable in principle. What should be considered is whether the costs were a reasonable amount and if they were reasonably incurred.

Where consultants have represented a party in the adjudication proceedings, the costs incurred by the claims consultants assisting a litigant in person are usually be recoverable in adjudication enforcement proceedings.

Note, however, a “blanket approach” will not be adopted and an “item by item” appraisal will be carried out to determine recoverability.

In light of this decision, is important that consultants maintain an accurate and detailed record of all work carried out for their clients. The records of a consultant are likely to be heavily scrutinised in order to determine if the associated costs can be justified and therefore recoverable.

For further information, please contact:

Amira Khan, senior associate, Construction

T: 0121 202 1461

E: Amira.Khan@gateleyplc.com

[1] Octoesse LLP v Trak Special Projects Limited [2016] EWCH 3180

[2] NAP Anglia Ltd v Sun-Land Development Co. Ltd [2012] EWHC 51


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This blog is intended only as a synopsis of certain recent developments. If any matter referred to in this blog is sought to be relied upon, further advice should be obtained.