CPR 45.29I: Disbursements Under the Old Fixed Costs Regime
Practice Guides — 2026-08-10
What old CPR 45.29I allows in ex-protocol fixed costs claims, why it still governs pre-October 2023 accidents, and the case law on the 'particular feature of the dispute' test: Aldred v Cham, Santiago v MIB and the MedCo fee caps.
Overview
Rule: CPR 45.29I (Part 45, Section IIIA, as it stood before 1 October 2023)
Scope: Disbursements in claims started under the RTA, EL/PL or Package Travel Protocols which no longer continue under the relevant Protocol
Key Issues:
- Which disbursements the court may allow in an ex-protocol fixed costs claim
- Why the old rule still governs most personal injury claims settling today
- The "particular feature of the dispute" test and the case law on it
- Fixed cost medical reports and the MedCo fee caps
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Rule 45.29I sat in Section IIIA of the old CPR Part 45 and governed disbursements in claims that started under the RTA Protocol or the EL/PL Protocol but exited it: the ex-protocol fixed recoverable costs regime. The rule was replaced on 1 October 2023 when the extended fixed costs regime recast Part 45. It has not stopped mattering. The transitional provisions preserve the old rules for a large tail of claims, and disputes about what old 45.29I allows are still being fought in 2026.
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Does the Old Rule Still Apply to Your Claim?
The 2023 recasting of Part 45 applies only to claims where proceedings are issued on or after 1 October 2023. For personal injury claims other than disease claims, it applies only where the cause of action accrued on or after 1 October 2023. For disease claims, it applies only if no letter of claim had been sent before that date.
The practical effect is that any injury claim arising from an accident before 1 October 2023 remains under the old Part 45, however long it runs. A road traffic accident in September 2023 that settles in 2026 is still an old-regime claim, and its disbursements are still governed by 45.29I. Given limitation, old-regime claims will be commencing and settling well into 2027 and beyond.
Section IIIA itself applied to claims started under the RTA Protocol or EL/PL Protocol which no longer continued under the relevant Protocol or the Stage 3 procedure. It did not apply to disease claims started under the EL/PL Protocol, which fall outside the fixed costs tables altogether.
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What the Rule Allowed
Rule 45.29I(1) was a closed list. The court could allow a claim for a disbursement of a type mentioned in paragraphs (2) or (3), but would not allow a claim for any other type of disbursement. The recoverable categories in paragraph (2) were:
1. The cost of obtaining medical records and expert medical reports as provided for in the relevant Protocol
2. The cost of any non-medical expert reports as provided for in the relevant Protocol
3. The cost of any advice from a specialist solicitor or counsel as provided for in the relevant Protocol
4. Court fees
5. Any expert's fee for attending trial, where the court gave permission for the expert to attend
6. Reasonable travel expenses of a party or witness attending a hearing
7. Loss of earnings or loss of leave of a party or witness, capped at the amount in Practice Direction 45
8. Any other disbursement reasonably incurred due to a particular feature of the dispute
In a claim started under the RTA Protocol, paragraph (3) added the cost of an engineer's report and searches of DVLA and Motor Insurance Database records.
The structure matters for how disputes are argued. The question under 45.29I(1)(b) is one of type, not amount. If a disbursement does not fit a listed category, the court has no discretion to allow it because it was reasonably incurred. Everything turns on classification, which is why the residual category in (2)(h) became the battleground.
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The "Particular Feature of the Dispute" Cases
Aldred v Cham [2019] EWCA Civ 1780 is the leading decision on (2)(h). The claimant was a child, and counsel was instructed to advise on settlement, as the rules require for an infant approval. The Court of Appeal held the fee was not recoverable. The advice was necessary because the claimant was a child, but the age of a party is a characteristic of the claimant, not "a particular feature of the dispute."
Santiago v Motor Insurers' Bureau [2023] EWCA Civ 838 pulled the other way. The Court of Appeal held that the overriding objective required the reasonably incurred fees of an independent interpreter to be recoverable under (2)(h). We covered the decision in detail in our article on interpreter fees as disbursements.
The tension between those two decisions runs through the current disputes about medical agency charges. In JXX v Archibald, the SCCO held that medical reporting organisation fees are disbursements rather than outsourced solicitors' work, with a maximum 25% markup recoverable over the direct medical fee.
Two further decisions complete the picture. In Finsbury Food Group Plc v Dover [2020] EWHC 2176 (QB), the High Court confirmed that the cost of specialist advice recoverable under (2)(c) is not fixed and remains subject to assessment. And in British Airways Plc v Prosser [2019] EWCA Civ 547, the Court of Appeal held it reasonable to pay VAT on the whole of a medical agency's fee even where the underlying doctors and hospitals were not VAT registered.
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Fixed Cost Medical Reports and MedCo
For soft tissue injury and whiplash claims started under the RTA Protocol, paragraphs (2A) to (2E) fixed the recoverable medical evidence costs (exclusive of VAT):
| Item | Fixed amount |
|---|---|
| First report from an accredited MedCo expert | £180 |
| Further report: Consultant Orthopaedic Surgeon | £420 |
| Further report: Consultant in A&E Medicine | £360 |
| Further report: GP or Physiotherapist | £180 |
| Medical records | £30 plus direct cost, capped at £80 per set |
| Addendum report on records (non-orthopaedic) | £50 |
| Answers to Part 35 questions | £80 |
No fee was allowed, save in exceptional circumstances, where the reporting expert had treated the claimant, was associated with anyone who had, or proposed treatment that they or an associate would then provide.
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The Rest of the Machinery
Three neighbouring rules shape any 45.29I argument.
Rule 45.29H fixed the costs of interim applications at half the applicable Type A and Type B costs. The Court of Appeal held in Sharp v Leeds City Council [2017] EWCA Civ 33 that this extends to applications for pre-action disclosure, so only the fixed sum is recoverable.
Rule 45.29J allowed a claim for costs exceeding fixed recoverable costs in exceptional circumstances. The test is a high one, judged against other Section IIIA cases rather than protocol cases generally: Ferri v Gill [2019] EWHC 952 (QB).
Rule 45.29K punished failed escape attempts. If costs were assessed under 45.29J and came out at less than 20% above the fixed costs, the claiming party paid the costs of the assessment.
Part 36 also interlocks with the old regime. Where a Part 36 offer was accepted in a Section IIIA claim, old rule 36.20 applied rather than the ordinary costs consequences. The Court of Appeal has now confirmed that where the offer was made and its relevant period expired before allocation, later multi-track allocation does not displace the fixed costs consequences: see [our analysis of Attersley v UK Insurance [2026] EWCA Civ 217](/cases/attersley-v-uk-insurance-2026-ewca-civ-217).
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Practical Implications
For Costs Lawyers
1. Identify the regime before drafting anything. The accrual date, not the settlement date, decides whether old Section IIIA or the new Part 45 applies. Plenty of 2026 bills still belong to the old regime.
2. Argue type first, quantum second. Under 45.29I(1)(b) a disbursement outside the listed categories is irrecoverable however reasonable. Classification wins or loses the point before reasonableness is reached.
3. Use Aldred and Santiago precisely. A cost driven by a characteristic of the party is caught by Aldred v Cham. A cost without which the litigation cannot fairly proceed sits with Santiago. Pleading the distinction, rather than asserting reasonableness, is what persuades.
4. Test what was billed against the MedCo caps. The (2A) figures are hard caps for fixed cost medical reports, and the treating-expert prohibition in (2B) is often missed.
For Litigation Practitioners
1. Instruct within the Protocol framework. Categories (a) to (c) are tied to what the relevant Protocol provided for. Evidence obtained outside that framework invites a type objection at assessment.
2. Get permission for experts to attend trial. An expert's attendance fee is only recoverable where the court gave permission.
3. Budget interim applications at the fixed sum. Sharp means an application, including one for pre-action disclosure, yields half Type A and B costs, whatever it actually cost to bring.
4. Treat 45.29J as a last resort. The exceptional circumstances threshold is high, and rule 45.29K makes a marginal escape attempt expensive.
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Conclusion
Rule 45.29I is a closed list with one open door, and a decade of litigation has been about how far that door in (2)(h) opens. Aldred v Cham keeps it narrow. Santiago shows it is not shut. The current medical agency disputes are testing where between those points the line sits.
The rule will fade as the pre-October 2023 tail works through, but that tail is long. For any claim arising from an accident before 1 October 2023, this remains the operative disbursements code, and the fixed costs tables around it remain the operative costs regime. Mackenzie Costs acts for receiving and paying parties in ex-protocol fixed costs disputes, from drafting and points of dispute through to assessment.
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Rule: CPR 45.29I, Part 45 Section IIIA (as in force before 1 October 2023)
Key authorities: Aldred v Cham [2019] EWCA Civ 1780; Santiago v Motor Insurers' Bureau [2023] EWCA Civ 838; Sharp v Leeds City Council [2017] EWCA Civ 33; Ferri v Gill [2019] EWHC 952 (QB); Finsbury Food Group Plc v Dover [2020] EWHC 2176 (QB); British Airways Plc v Prosser [2019] EWCA Civ 547
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