Kingdom Thenga v Elsa Quinn
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wilson |
| Judgment Date | 28 January 2009 |
| Neutral Citation | [2009] EWCA Civ 151 |
| Docket Number | Case No: A2/2008/2280 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 January 2009 |
[2009] EWCA Civ 151
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BURY COUNTY COURT
(HIS HONOUR JUDGE TETLOW)
LOWER COURT NO: 7BU01440
Lord Justice Wilson
Case No: A2/2008/2280
Mr C Ralph (instructed by Sheldon Davidson) appeared on behalf of the Applicant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
Lord Justice Wilson:
A claimant renews his application for permission to appeal against an order made by HHJ Tetlow in the Bury County Court on 22 July 2008. The circuit judge then determined an appeal by the defendant against an order of Deputy District Judge Masheder on 2 October 2007. In the event the circuit judge allowed the defendant's appeal. It follows that the claimant's proposed appeal to this court would be a second appeal, to which the stiffer criteria for permission, set by CPR Rule 52.13, would apply: thus this court will not give permission unless it considers that the appeal would raise an important point of principle or practice or there is some other compelling reason for it to hear it.
The issue surrounds the assessment of costs payable by the defendant to the claimant in the action. The claim brought by the claimant against the defendant was a “Road Traffic Accident” claim and, in that the claimant had entered into a conditional fee agreement with his solicitor in relation to it, and in the light of the size of the claim, the provisions in section III of Part 45 of the Civil Procedure Rules apply to the assessment. Within section III falls Rule 45.16(1), which provides that:
“…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
(ii) the dispute is settled before a claim is issued.”
It has been the contention of the claimant that the claim concluded at trial, with the result that the percentage increase to be allowed in relation to his solicitors' fees was 100%. The defendant, by contrast, has contended that the claim concluded before a trial had commenced, with the result that the percentage increase to be allowed in relation to the claimant's solicitors' fees was only 12.5%. Before the district judge the claimant's contention prevailed. Before the circuit judge, however, the defendant's contention prevailed. It is against the circuit judge's award of a percentage increase of only 12.5% that the claimant aspires to appeal to this court.
Rule 45.15(6) provides important definitions of one of the words and of one of the phrases found within the crucial Rule 45.16. By Rule 45.15(6)(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”. By Rule 45.15(6)(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”.
The accident in respect of which the claimant sued the defendant for negligence occurred in October 2004. By insurers, the defendant swiftly admitted liability. It appears, however, to have proved impossible at that stage to secure an agreement as to the quantum of the claimant's damages. Thus in May 2007 he issued his claim in the county court. In August 2007 judgment was given for him in default of defence and a hearing was fixed to take place before a district judge on 2 October 2007, at which the quantum of his damages would be determined. In the event a hearing on that day for that particular purpose proved unnecessary. For on 23 August 2007 the quantum of special damages was agreed and a cheque was issued on behalf of the defendant in favour of the claimant or his solicitors; and, by letter dated 13 September 2007, the quantum of general damages was agreed and, eight days later, a further cheque was issued in respect of that. By the same letter the defendant also agreed to pay the claimant's costs to be assessed, in default of agreement, on the standard basis. At or up to that point there was no discussion between the solicitors as to whether the costs should be the subject of summary or, alternatively, of detailed assessment.
In the event the hearing fixed to take place on 2 October 2007, no longer needed for the purpose for which it had been fixed, was, surprisingly, used for another purpose, namely for the district judge to conduct a summary assessment of costs.
Paragraph 13.2 of the Practice Direction appended to Part 44 of the Rules makes clear that the general rule is that the court should make a summary assessment of costs only at the conclusion of a hearing relating to all or part of a substantive claim. Indeed the editors of the White Book 2008 explain, at 44.7.1, that “only the judge who hears the case is in a position to make a summary assessment of the costs, otherwise the issue of costs should be sent to a costs judge for consideration”; and a decision of this court, namely Mahmood v. Penrose [2002] EWCA Civ 457, is correctly cited in support of that proposition. The district judge had not heard part or all of the substantive claim. So how could he have conducted a summary assessment? The answer, such as it is, lies in a practice which has developed (so Dr Friston wrote when he drafted the skeleton argument in support of this proposed appeal and so Mr Ralph, who has appeared on behalf of the claimant before me this afternoon, also tells me) in the county courts of Bury, Wigan, Blackburn and surrounding areas. The practice is to allow parties to attend for a summary hearing at a discrete hearing before district judges (perhaps also even sometimes circuit judges) notwithstanding that they have not heard any part of the substantive claim. On the face of it, therefore, the practice is irregular; on the other hand, if the litigating public in the north west is happy with it, there may be something to be said for my turning a blind eye to it. I am...
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