The Court of Appeal delivered some good news to claimants last week with a ruling on the level of fees that apply to cases listed for disposal, in a decision that Lord Justice Briggs said would have a ‘substantial’ cumulative effect.
In Bird v Acorn [2016] EWCA Civ 1096, the court held that the highest level of available pre-trial fixed costs are payable.
The case involved a personal injury claim brought by a man, Mr Bird, who was injured when a spanner was dropped onto his hand while visiting the defendant’s garage in August 2013.
Bird’s solicitors, Taylor Rose TTKW, entered the claim through the Employer’s Liability/Public Liabilty portal, but received no response from Acorn, and so withdrew the claim from the portal on 15 October. Liability was admitted in correspondence from Acorn’s insurers the following month.
The claimant’s lawyers submitted medical evidence to the insurers with a view to settlement, but as nothing was agreed, proceedings were issued in April 2014.
Acorn failed to acknowledge service, and Bird obtained default judgment in May. The case was transferred from the Salford County Claims Money Centre to Birkenhead County Court for damages to be assessed.
On receiving the case file, Birkenhead CC listed the case for a 10-minute disposal hearing on 1 September. The case then settled.
As costs were not agreed, these were provisionally assessed by DJ Campbell on 5 December. The judge had to decide which of three potential fixed cost ‘columns’ within Table 6D part B, contained within the civil procedure rules at CPR45.29E, should apply.
DJ Campbell held that the most generous of the three columns should apply - column 3 - amounting to fixed costs of £3,790 plus 27.5% of damages.
The issue was leapfrogged to the Court of Appeal, which upheld DJ Cambell’s decision. Lord Justice Briggs (pictured) said: ‘In my judgment listing a case for a disposal hearing following judgment… is listing for trial, for [these] purposes.’
The judge noted that the question of which costs should apply was a ‘short but important point’.
He added: ‘This is important… because the question is whether a disposal hearing listed for the quantification of damages payable after judgment under CPR26 PD12.2(1)(a) is, or is not, a trial within the meaning of rule 45.29E(4)(c). Many EL/PL Protocol cases are dealt with in that way.
‘If the listing of a disposal hearing constitutes listing for trial, then fixed costs are recoverable at a higher rate than would otherwise be the case where there is a settlement between the date of listing and the date fixed for the disposal hearing.
‘The difference is, in absolute terms, a modest one but the cumulative effect of its application to numerous cases is substantial.
‘Authoritative guidance is needed on a question which has generated significant controversy, hence this leapfrog appeal.’
CA ruling on fixed fees to have ‘substantial’ effect
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