The Court of Appeal has dismissed the appeal against the finding that a “disposal hearing” was a trial for the purposes of the fixed costs regime, applicable to personal injury cases commenced under the EL/PL and RTA low value personal injury protocols.
The issue was whether a “disposal hearing” is, or is not, a trial within the meaning of rule 45.29E(4)(c) in EL/PL Protocol cases. The rule provides that in Table 6D, “a reference to 'trial' is a reference to the final contested hearing.” An identical definition applies to cases started under the RTA Protocol.
The issues determined the question: What is the fixed fee that applies where a case settles post-issue before allocation, but after listing for a disposal hearing?
In the example below, is the fee £3,150 or £4,890?
The appellant argued that:
The Court of Appeal found that listing a case for a disposal hearing is a listing for a trial. This is because:
Listing is the trigger for the claimant to prepare and serve requisite evidence.
In rejection of the appellant’s arguments the Court of Appeal said that:
Defendants will be deeply dismayed at the outcome of the appeal as the fixed fees that will result are not those that were intended by those involved in the Review of the Cost of Civil Litigation or the rule makers.
The triggers and the basis for the fixed fee calculations in the tables were derived from an analysis of the actual costs incurred data of fast track personal injury cases settled between 2006 and 2009.
The stages were determined by identifying the payment of an allocation or a listing fee within the datasets. The preliminary report confirms that;
“While the sub-committee did consider the possibility of a number of different post-issue stages to be included in the matrix, in practice the data available did not consistently record the timing of settlements within the post-issue phase of litigation. It is however possible to identify those cases in which an allocation fee or a listing fee has been paid, so that costs can be estimated for cases settling after those stages have been reached.” [Preliminary report – paragraph 2.6 of Ch 22]
The data analysis provided only three points of reference as follows:
Each of the three points of reference became the trigger for the next step in the proceedings in the tables as they related to the period after payment of each fee.
At that time of the dataset, there was no requirement to pay an allocation fee on a case which was listed for a disposal hearing.
It follows that all of the settled cases which had been listed for a disposal hearing fell within the batch of cases in Column 1 of the table above which is “On or after the date of issue, but prior to the date of allocation under Part 26”.
Further, those involved in the Review of the Cost of Civil Litigation and the rule makers did not envisage that Column 2 would be made redundant by the relatively new practice adopted by County Court hearing centres to make an order for directions and list for trial simultaneously once a defence has been filed.
Rather than providing access to justice at proportionate cost we have a set of circumstances that penalises a defendant for making an admission of liability and prevents a defendant from settling a case once evidence has been disclosed but before listing for trial.
In the example above, a defendant will pay £1,740 more per case as a result of these unintended consequences.
We shall be bringing them to the attention of the Civil Procedure Rules Committee and we shall be engaging with Lord Justice Jackson’s Review of Fixed Recoverable Costs in the near future.
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