Mr Bruno Manuel Dos Santos Mendes (Claimant/Appellant) v Hochtief (UK) Construction Ltd
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr Justice Coulson |
| Judgment Date | 29 April 2016 |
| Neutral Citation | [2016] EWHC 976 (QB) |
| Docket Number | Appeal Ref: 5BS010SC |
| Court | Queen's Bench Division |
| Date | 29 April 2016 |
[2016] EWHC 976 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ON APPEAL FROM MR RECORDER PALMER QC
(Sitting at Swindon County Court)
Bristol Civil and Family Justice Centre,
2 Redcliff Street, Bristol, BS1 6GR.
The Hon Mr Justice Coulson
Appeal Ref: 5BS010SC
Claim No: B05YJ974
Nicholas Bacon QC (instructed by Armstrongs, Solicitors) for the Claimant/Appellant
Darren Lewis (instructed by Taylor Rose TTKW) for the Defendant/Respondent
Hearing date: 19 April 2016
Final written submissions: 26 April 2016
Approved Judgment
INTRODUCTION
This was originally fixed as an oral hearing for permission to appeal only but, since the issue was a short but potentially important point of interpretation of the CPR, it seemed sensible to deal with it by way of a rolled-up hearing. Mr Lewis, on behalf of the defendant, helpfully indicated that, although he did not object to that course, he reserved the defendant's right to provide further written submissions during the time that it took for the preparation of this reserved Judgment. That is what has happened. I am very grateful for his cooperation.
The claimant suffered personal injuries after a motor accident on 7 August 2014. A claim was notified under the Pre-Action Protocol for Low Value Personal Claims in Road Traffic Accidents ("the RTA Protocol") on 26 August 2014. The RTA Protocol operates electronically via a portal operated by the Ministry of Justice. The defendant denied liability, which meant that the claim automatically exited the portal process.
Proceedings were issued on 12 January 2015. Because the claim had started under the RTA Protocol after 31 July 2013, the costs were subject to the fixed costs regime set out in Part IIIA of CPR Part 45, starting at r.45.29A.
On 4 March 2015, a defence and counterclaim was filed and on 15 May 2015 the case was allocated to the fast-track. On 22 October 2015, the parties were notified that a one-day trial had been listed for 11 December 2015. The parties attended for trial on that day at Swindon County Court. Both sides were represented by counsel. They twice indicated to the learned recorder who was to hear the trial that, if granted a little more time, they might well be able to settle the case. That is what happened. They therefore attended before the recorder with a consent order, pursuant to the terms of which the claimant was awarded damages of £20,000 plus costs.
The recorder was then invited to assess costs in accordance with Part IIIA. In so doing, he awarded two elements of the fixed costs in accordance with the CPR: £2,655 and 20% of the damages. But he refused to award the fixed trial advocacy fee. He concluded that, because the case was settled before the final contested hearing had commenced, no such sum was recoverable. It is that decision which the claimant now seeks to appeal. Both counsel agreed that the point in issue – is a trial advocacy fee recoverable under the fixed costs scheme if a case settles on the day of trial but before the trial actually commences? – was of wider significance. It was for that reason that I reserved this Judgment.
THE RELEVANT RULES
Rule 45.29A identifies the circumstances in which the Part IIIA rules apply. There is no doubt that they apply in this case because it is a claim which began under the RTA Protocol but which did not then continue under that Protocol because liability was denied. The proceedings which followed were issued under Part 7.
Rule 45.29C provides as follows:
"(1) Subject to paragraph (2), the amount of fixed costs is set out in Table 6B.
(2) Where the claimant—
(a) lives or works in an area set out in Practice Direction 45; and
(b) instructs a legal representative who practises in that area, the fixed costs will include, in addition to the costs set out in Table 6B, an amount equal to 12.5% of the costs allowable under paragraph (1) and set out in Table 6B.
(3) Where appropriate, VAT may be recovered in addition to the amount of fixed recoverable costs and any reference in this Section to fixed costs is a reference to those costs net of VAT.
(4) In Table 6B—
(a) in Part B, 'on or after' means the period beginning on the date on which the court respectively—
(i) issues the claim;
(ii) allocates the claim under Part 26; or
(iii) lists the claim for trial; and
(b) unless stated otherwise, a reference to 'damages' means agreed damages; and
(c) a reference to 'trial' is a reference to the final contested hearing."
TABLE 6B
| Fixed costs where a claim no longer continues under the RTA Protocol | ||||
| A. If Parties reach a settlement prior to the claimant issuing proceedings under Part 7 | ||||
| Agreed damages | At least £1,000, but not more than £5,000 | More than £5,000, but not more than £10,000 | More than £10,000, but not more than £25,000 | |
| Fixed costs | The greater of— (a) £550; or (b) the total of— (i) £100; and (ii) 20% of the damages | The total of— (a) £1,100; and (b) 15% of damages over £5,000 | The total of— (a)£1,930; and (b) 10% of damages over £10,000 | |
| B. If proceedings are issued under Part 7, but the case settles before trial | ||||
| Stage at which case is settled | On or after the date of issue, but prior to the date of allocation under Part 26 | On or after the date of allocation under Part 26, but prior to the date of listing | On or after the date of listing but prior the date of trial | |
| Fixed costs | The total of— (a) £1,160; and (b) 20% of the damages | The total of— (a) £1,880; and (b) 20% of the damages | The total of— (a) £2,655; and (b) 20% of the damages | |
| C. If the claim is disposed of at trial | ||||
| Fixed costs | The total of— (a) £2,655; and (b) 20% of the damages agreed or awarded; and (c) the relevant trial advocacy fee | |||
| D. Trial advocacy fees | ||||
| Damages agreed or awarded | Not more than £3,000 | More than £3,000, but not more than £10,000 | More than £10,000, but not more than £15,000 | More than £15,000 |
| Trial advocacy fee | £500 | £710 | £1,070 | £1,705 |
THE RECORDER'S DECISION
The recorder was in a certain amount of difficulty because, as he pointed out, he did not have an up-to-date White Book at court and no authorities were cited to him. He recited the rule noted above and stressed the definition of the word "trial" as being "a reference to the final contested hearing". He then set out the facts and concluded that the trial had not commenced when he was informed that it had settled. Before me, Mr Lewis confirmed that he and trial counsel had agreed that that was the case, and Mr Bacon QC does not resile from that agreement.
The recorder ordered that the £2,655 and the 20% were recoverable, but did not specify whether this was under section B or section C of Table 6B. Then, at paragraph 11 of his judgment, he set out his reasons for concluding that the trial advocacy fee under section C was not recoverable:
"In those circumstances, has the claim been disposed of at trial, or was the case settled before the final contested hearing? The fact, in my judgment, is that the case had not been called on for the trial hearing. It is not suggested by Mr Bellis [counsel then instructed for the claimant] that those previous discussions between counsel and myself amounted to the hearing starting. Has the trial been settled before the final contested hearing? It seems to me, as a matter of simple English, the answer to that question has to be Yes, it was settled before, in effect, the commencement of the final contested hearing. The addition of the word 'commencement' is not mere elaboration, it is an expansion of what the final contested hearing must consist of. The final contested hearing has a start, a middle and an end. We had not reached the start and that start had not occurred."
THE SUBMISSIONS
On behalf of the claimant, Mr Bacon QC argued that the learned recorder was wrong to reach this conclusion. He referred to Section B of Table 6B (paragraph 7 above) which dictated precisely what was to be paid at each of the three pre-trial stages. The first was if the case settled "on or after the date of issue, but prior to the date of allocation under part 26". The second was if the case settled "on or after the date of allocation under part 26, but prior to the date of listing". The third and final stage for Section B was if the case settled "on or after the date of listing but prior [to] the date of trial".
Mr Bacon QC said that the settlement which occurred in this case could not be said to have arisen under any of those three stages. The settlement did not occur prior to the date of trial. Thus, he said, section B of Table 6B was inapplicable and the court had to deal with the costs under section C instead. In any event, he said, the claim had been disposed of at trial so, in addition to the other two elements of fixed costs, the relevant trial advocacy fee was also recoverable.
Mr Lewis submitted that the trial advocacy fee was only recoverable under section C of Table 6B if the trial had commenced. He prayed in aid the definition of trial at r.45.29C(4)(c), arguing that, since a trial meant "the final contested hearing", it could not be said that this claim had been disposed of at a final contested hearing. Thus he said the relevant trial advocacy fee was not recoverable.
Counsel are agreed that there is no authority on this point. Mr Lewis referred to authorities on an earlier rule, which has now been superseded and which is worded differently, in support of his submission. Accordingly, I set out my analysis based on first principles in Section 5 below, and come to consider the other authorities on the superseded rule, and whether they make any difference to my...
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...disbursement has already been allowed for in the fixed recoverable costs (Table 6B). Thus in Mendes v Hochtief (UK) Construction Ltd [2016] EWHC 976 (QB) the trial advocacy fee under Stage D of Table 6B was recoverable because the case settled at court on the day listed for trial. There wa......
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