District Judge Shaw, County Court Bolton, 28 January 2015
The new rules extending the application of fixed recoverable costs to RTA fast track litigated cases brought with it uncertainty as to the fee that applies.
The fees are governed by CPR 45.29C and are set out in Table 6B as follows:-
| Table 6B | Column 1 | Column 2 | Column 3 | Column 4 |
|---|---|---|---|---|
| Stage at which case settles | 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 to the date of trial | Claims disposed of at trial |
| Fixed costs | £1,160 +20% of damages | £1,880 +20% of damages | £2,655 +20% of damages | £2,655 +20% of damages + trial advocacy fee |
The issue that arises is one of interpretation of Table 6B and in particular the meaning of a “trial” within the context of Table 6B. More particularly the issue is:
What is the fixed fee that applies to a case which has been listed for disposal hearing and:
Claimants seek to recover column 3 or 4 fixed fees in Table 6B on the grounds that a “disposal hearing” is a “trial”. They place reliance on the CPR 45.29C 4(c) which provides that,
“a reference to 'trial' is a reference to the final contested hearing.”
They rely upon the judgment of HHJ Stewart QC in Watson v Gray (8 February 2005) where the court found that a “disposal hearing” was a “trial” where damages were determined at the disposal hearing.
Claimants also rely on the judgment of District judge Doyle in Taylor v Bunter (19 September 2014) where the court found that the fees in the columns to Table 6B were disjunctive rather than cumulative.
The claim suffered personal injury in a road traffic accident. Liability was initially denied but, following further investigation, was subsequently admitted in the defence. The court entered judgment on the admission and listed the claim for a disposal hearing without allocation under Part 26.
Shortly afterwards, the claim was compromised by way of acceptance of a Part 36 offer of £6,673.00.
The claimant claimed column 3 costs set out above on the basis that the case had settled “on or after the date of listing but before trial” as the case settled after listing for a disposal hearing and as a “disposal hearing” was a “trial.”
The defendant argued that a “disposal hearing” was not a “trial”. Further, the claimant should be limited to column 1 costs set out above on the basis that the claim had not been allocated and so it has settled “on or after the date of issue, but prior to the date of allocation under Part 26.”
The court held that a “disposal hearing” is not a “trial”. The meaning of a disposal hearing is set out within CPR PD 26, section 12.4 and has to be considered in context of the case.
The case was listed for a disposal hearing because the court did not consider there to be a genuine issue and the case was suitable for disposal.
The fixed costs columns are cumulative rather than being separate and unrelated. This means that a case cannot progress from column 1 to column 2 without the case being allocated to track.
The court awarded costs calculated in accordance with column 1 and ordered the claimant to pay the defendant’s costs as the claimant had failed to beat the defendant’s offer on costs.
The court granted permission to appeal on the basis that it was an interesting and novel point that affected all of those claims that were listed for disposal hearings and not allocated to track.
Following the decision of District Judge Doyle in Taylor v Bunter, many claimants jumped on the bandwagon to claim the higher column 3 fixed fees in disposal hearing cases.
This is a welcome decision for defendants who have been looking for authority to challenge these claims.
However, as the decisions are persuasive and not binding authorities, the issue will need to be determined in a more senior court upon appeal.
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