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Dahele v Thomas Bates & Son Limited, 6 July 2007

6 July 2007
The issues

Costs – fixed success fees – employer’s liability – where the case concluded before or at Trial for the purposes of fixed success fee.

The facts

Claimant was suffering from mesophylioma. He went to solicitors having been referred to a specialist firm of solicitors by the specialist who treated him at Barts Hospital in London. He signed a CFA on the 3rd March 2006. In July 2006 there was a Case Management Conference which directed that the Claimant’s evidence be given on commission before a Court appointed examiner. On the 5th July 2006 his evidence was taken on commission. The Claimant was cross-examined and re-examined. The day after, liability was admitted leaving quantum only in dispute. A quantum Trial was fixed for 7th September 2006. Quantum remained in dispute up to the date fixed for Trial. On that date negotiations took place at Court which resulted in an agreement between the Claimant and the Defendant. The Trial Judge had approved an Order. The Claimant’s solicitors submitted a bill for Detailed Assessment. Both Counsel and solicitors claimed a success fee of 100%. The claim was one to which the fixed recoverable success fees and CPR Part 45.23 applied. It was a “Type A” claim. The success fee in respect of the solicitors was 27.5% where the claim concluded before the Trial commenced. The Defendant argued that no Trial had taken place and that the appropriate success fee should be 27.5% in respect of the solicitor’s costs. In respect of Counsel, the success fee was fixed at 75% if the claim concluded 21 days or less before the date fixed for commencement of the Trial and the Defendant therefore offered 75% in respect of Counsel’s success fee.

The decision

The taking of evidence on commission was not a contested hearing of any issue ordered to be tried separately pursuant to Rule 45.15 (6)(b). No determination was made at the taking of evidence on commission. There was no issue decided at the hearing and no outcome to the hearing.

The taking of evidence on commission could not therefore amount to a Trial for the purposes of the fixed success fee regime.

On the 7th September 2006 the quantum Trial was due to take place. The Claimant’s solicitor attended at Court with the Claimant’s expert witnesses and the Claimant’s counsel. Negotiations took place and after several hours of negotiation agreement was reached. Settlement was achieved at approximately 11.10am and the parties went before the Judge to get his approval. There could be no doubt that the quantum Trial was either “the final contested hearing” or the “contested hearing of any issue to be ordered to be tried separately”. In respect of the solicitors costs therefore the case had concluded at Trial (Rule 25(1)(a) allows 100% in respect of solicitor’s fee if the claim concludes at Trial).

In respect of Counsel’s fees there was a hole in the rules. A case which settles on the day of the final hearing could not be a claim concluding 21 or any other number of days before the date fixed for the commencement of the Trial. This case settled on the day of Trial .Counsel would therefore get a 75% success fee if the case settled up to midnight on the day before the date fixed for the hearing. Conversely he would get 100% if the Judge at the start of the Trial instructed the parties to go and settle the case as soon as it had been called into Court. There would appear to be no figure prescribed by the regulations in the period of time from 1 minute past midnight on the day of the Trial to the time for commencement of that trial later that day.

In those circumstances, in respect of Counsel’s fees, Rule 45(25)(1)(a) had to be interpreted as meaning that a case “concludes at Trial” if it settled on the day fixed for Trial.

Both Counsel and solicitors were therefore entitled to a 100% success fee.

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