Colin James v David Andrew Ireland (Respondent/Claimant)
| Jurisdiction | England & Wales |
| Judge | The Honourable Mrs Justice Slade DBE |
| Judgment Date | 05 May 2015 |
| Neutral Citation | [2015] EWHC 1259 (QB) |
| Docket Number | Appeal reference: QB /2014/0470 |
| Court | Queen's Bench Division |
| Date | 05 May 2015 |
[2015] EWHC 1259 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ON APPEAL FROM MASTER CAMPBELL
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Slade DBE
Sitting with
Master Haworth as assessor
Appeal reference: QB /2014/0470
Mr Arney (instructed by Kennedys Law LLP) for the Defendant
Mr Edwards (instructed by Clarke Wilmott LLP) for theClaimant
Hearing dates: 12 December 2014
Mr James, the Defendant in a road traffic accident claim, appeals from the Judgment and Order of Master Campbell on 7 August 2014. Master Campbell held that for the purpose of CPR 45.16 and 45.17 the trial of the action had commenced and accordingly the Claimant was entitled to recover a success fee of 100% on base costs. I was told that the 100% uplift in costs results in a sum of about £320,000.
CPR 45 provides for a fixed percentage by which the amount of a legal representative's fee can be increased in accordance with a Conditional Fee Agreement ('CFA') which provides for a success fee. Section III deals with road traffic accident claims. This appeal is concerned with the regime under which success fees payable under a CFA were recoverable from the paying party.
The hearing of the claim was listed for three days to start on 8 June 2011 before Mr Justice Griffith Williams. The trial of the issue of quantum was adjourned on the first day, 8 June 2011. The issue of liability was stood out on 9 June 2011. The Claim was settled before the next hearing. The question before the Master was whether the trial of the issue of liability had commenced before it was stood out on 9 June 2011. The Master held that the liability trial started on 8 June 2011 after the application to adjourn the issue of quantum was determined. Before me Mr Edwards, Counsel for the Claimant, sought to uphold the decision on the grounds relied upon by Master Campbell alternatively on the basis that the trial of liability commenced when both parties came into court at the start of proceedings on 8 June 2011 prior to the application to adjourn the hearing of the quantum issue.
The relevant provisions of the CPR
" CPR 45.15 – (1) This Section sets out the percentage increase which is to be allowed in the cases to which this Section applies.
(Rule 43.2(1)(l) defines "percentage increase as the percentage by which the amount of a legal representative's fee can be increased in accordance with a conditional fee agreement which provides a success fee.)
(2) This Section applies where –
(a) the dispute arises from a road traffic accident; and
(b) the claimant has entered into a funding arrangement of a type specified in rule 43.2(k)(i)
(Rule 43.2(k)(i) defines a funding arrangement as including an agreement or collective conditional fee agreement which provides for a success fee.)
…
(6) In this Section –
…
(b) a reference to "trial" is a reference to the final contested hearing or to the contested hearing of any issue ordered to be tried separately;
(c) a reference to a claim concluding at trial is a reference to a claim concluding by settlement after the trial has commenced or by judgment;
…
CPR 45.16 – Subject to rule 45.18, the percentage increase which is to be allowed in relation to solicitors' fees is—
(a) 100% where the claim concludes at trial; or
(b) 12.5% where –
(i) the claim concludes before a trial has commenced; or
…
CPR 45.17 – (1) Subject to rule 45.18, the percentage increase which is to be allowed in relation to counsel's fees is –
(a) 100% where the claim concludes at trial;
…
(c) if the claim has been allocated to the multi track –
(i) 75% if the claim concludes 21 days or less before the date fixed for the commencement of the trial;
The proceedings before Mr Justice Griffith Williams
The transcript of proceedings before Mr Justice Griffith Williams on 8 and 9 June 2011 was before the court as was his judgment on 8 June on the application to adjourn the issue of quantum. Extracts from the transcripts relevant to the hearings on those dates are set out. Numbers in square brackets are page numbers in the appeal bundle unless otherwise indicated.
June 2011
Mr Wilson-Smith QC, for the Claimant, informed Mr Justice Griffith Williams
"My Lord, this is listed as a trial on issues of liability and quantum.
…
As your Lordship will have seen from the papers, the liability issue is restricted to contributory negligence.
The position has arisen whereby I am seeking adjournment of the trial on the issues of quantum."
The application for an adjournment of the quantum issue was opposed by Mr Norris QC for the Defendant. Mr Justice Griffith Williams said that he could not sit beyond 1pm on the third day listed for the trial, Friday 10 June.
Judgment on the application to adjourn the issue of quantum was given after lunch on 8 June 2011. Mr Justice Griffith Williams granted the application to adjourn "limited as it is to the issue of quantum only" [113, paragraph 17]. The Judge then observed:
"It seems to me there is no reason why this case should not proceed on liability today." [114]
Mr Norris QC said that they had liability witnesses waiting and that "it is probably time to crack on." The court adjourned for fifteen minutes to 2.55pm.
When the court reassembled, by consent Counsel asked for an adjournment to 10.30 am on 9 June 2014 [106]. Mr Wilson-Smith QC told the Judge that he had been shown some information by way of disclosure that they would need to consider which would take time. Counsel also needed to take instructions from the Client. Mr Norris QC said that he had made late disclosure of an interview with a police officer, PC Delbridge, and they had a supplementary statement which Mr Wilson-Smith QC needed to consider. Mr Justice Griffith Williams asked how long the liability trial was likely to last. Mr Wilson-Smith QC replied that they thought there would be a day and a half's evidence. The Judge commented that he would like counsel to tell him what to read before the next morning. Both counsel invited the Judge to read various witness statements, principally those by the experts.
When the court convened on 9 June 2014, Mr Wilson-Smith QC informed the Judge [117]
"…as a result of the documentation that was disclosed, it is clear that there was another independent witness to the accident
…
MR JUSTICE GRIFFITH WILLIAMS: And this independent witness, you say, says that he cut that corner?
MR WILSON-SMITH: He cut the corner.
MR JUSTICE GRIFFITH WILLIAMS: Yes,
MR WILSON-SMITH: Now, we have been able to locate the name and address and telephone numbers of the witness. We tried to contact him last night. We believe we will be able to contact him. His evidence is significant for a number of reasons. First of all, both experts have proceeded on the basis there were no independent witnesses.
MR JUSTICE GRIFFITH WILLIAMS: And there is an area of dispute between them as to what I will call the angle of collision?
MR WILSON-SMITH: Precisely, precisely. Dr Mills says that this is significant evidence because, depending on the angle – well, the angle will to some extent influence the trajectory, as your Lordship will anticipate.
MR JUSTICE GRIFFITH WILLIAMS: Obviously, and it could also, reading their reports, have bearing on the issue of whether or not the helmet could have been dislodged?
MR WILSON-SMITH: My Lord, it has a bearing on a whole range of issues, including the force of the impact, and where the injuries are. My Lord, this is a big claim. It is an important claim and I am simply in a position where I have got to have a statement from him. What I invite your Lordship to do – I am anxious not to lose the trial date. I do not know what your Lordship's movements are or your availability?"
Mr Wilson-Smith QC asked the Judge to stand the case out until 2pm. Counsel said:
"Mr Small [the independent witness] regarded the driving as dangerous."[121]
The Judge was taken to some of the documents. Mr Wilson-Smith QC then continued:[125]
"Bearing in mind the importance of it to this Defendant, and bearing in mind the conflict between [the experts] Dr Chinn and Dr Mills, I feel that it is necessary for me to see whether I can obtain a statement from Mr Small. We have reason to believe that we can. How quickly we can do it is something that we are making urgent enquiries into. May I just say this? I understand my learned friend does not oppose to your Lordship to stand this out until two o'clock so that we can make those enquires."
Mr Norris QC referred to the possibility of supplementary witness statements from Mr Delbridge, the police officer, and Mrs Ireland. If there were to be supplementary evidence from the Claimant's side, including from Mr Small, he would wish to see it [130]. As had Mr Wilson-Smith QC, Mr Norris QC asked for an adjournment to 2pm. The case was adjourned until 2pm.
When the court resumed sitting at 2pm, Mr Wilson-Smith QC said:
"My Lord, progress is being made, but it is going to result in me asking your Lordship to stand this case out. …. We hope to have a witness statement by the close of play today. That will need to be considered by us and by the experts. Your Lordship is only sitting until midday tomorrow and my expert is not available next week. Apart from our own professional diaries – it would play havoc with those, but I do not advance that as a reason. It is with regret that I have to invite your Lordship to stand this case out."
Mr Norris QC indicated that there were other potential witnesses referred to in Mr James' supplementary statement of whom they may want to make further enquiries [132]. Mr Norris QC could see the difficulties of time constraints. Mr Justice Griffith Williams said [133]:
"I hope the parties...
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