There will doubtless be quite a few of you amongst our readers who have become embroiled in arguments over which set of fast track fixed fees should apply under CPR 45.29. The provision relates to costs in RTA protocol cases where proceedings are issued under Part 7 but the case settles before trial. The relevant fees are set out in Table 6B:
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;
The total of— (a) £1,160; and (b) 20% of the damages
On or after the date of allocation under Part 26, but prior to the date of listing;
The total of— (a) £1,880; and (b) 20% of the damages
On or after the date of listing but prior the date of trial Fixed costs;
The total of— (a) £2,655; and (b) 20% of the damages
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 – Fee £500
More than £3,000, but not more than £10,000 – Fee £710
More than £10,000, but not more than £15,000 – Fee £1070
More than £15,000 – Fee £1,705
Where the Claimant lives or works in an area set out in Practice Direction 45; and instructs a legal representative who practises in that area, the fixed costs will include, in addition to the costs set out in Table 6B above, an amount equal to 12.5% of the costs allowable.Where appropriate, VAT may also 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.
If the case settles after the date of issue, but prior to the date of allocation, then there is no great problem and fixed costs in the first column (£1160 and 20% of the damages) apply.
The problem arises if settlement occurs a little later. The second column of fixed costs applies for cases which settle on or after the date of allocation, but prior to the date of listing and the third column applies to cases on or after the date of listing but prior to the date of trial.
The argument has arisen because of the practice in some Courts to list the matter for a disposal hearing where liability is not in issue. This is done at directions stage and therefore it is arguable that the case falls into either of the second or third columns. For the Defendants, it may be argued that quite clearly the fixed costs are supposed to represent the particular stage reached in the case and that a disposal hearing should not be treated in the same way as listing for trial which assumes that a great deal of work will have been undertaken in order to comply with various directions on disclosure, witness statements etc to get the matter ready for hearing. Only if all of that work were necessary, it is argued, should the third column amount of £2655 plus 20% of the damages be properly recoverable.
For the Claimants side, it is argued that these columns do not have to be read sequentially and that quite clearly a listing has been made and that the rules should be read logically and literally. Further, the whole point of the fixed costs rules is that there should be no arguments about costs and that to attempt to import some meaning other than the literal meaning is inappropriate.
HHJ Wood in Liverpool has now made orders in many cases staying any appeals pending the outcome of a decision by the Court of Appeal in the matter of Bird v Acorn Group. The Defendants Solicitors in that case (Taylor Rose) have been granted a leapfrog appeal direct to the Court of Appeal for the issue to be determined.
This is another of those issues where on the individual case the sums in issue are not particularly substantial (certainly not substantial enough to reasonably and proportionately warrant the cost of an Appeal) but where potentially the decision is of such far reaching consequence that many cases will be affected, meaning that the costs actually involved are substantial indeed.
This will be an interesting one to follow. Provisionally, the matter is in a trial window from October 2015 to February 2016 and so the decision is a little way off just yet but the decision may well have consequences which go beyond simply the application of this rule and go perhaps to the heart of interpretation of fixed cost rules generally. With the impended expansion of the fixed costs regime (and indeed its relatively recent expansion to a far greater range of cases many of which have yet to fall for Assessment) this could be an important decision.