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Loizou v Gordon & Another Master Leonard, Senior Courts Costs Office, 21 August 2012

22 November 2012
The issues

Costs – fixed fee – CPR Part 45, Part III – road traffic accident claims – whether matter concluded at trial

The facts

The parties had a road traffic accident on 30 October 2008. Liability was disputed between the first defendant and the second defendant. The liability trial was listed for 21st July 2011. The first defendant and his witness failed to turn up. The judge refused the first defendants’ application to adjourn. After a short adjournment liability was conceded on behalf of the first defendant. The judge gave judgment for the claimant against the first defendant, dismissing the claim against the second defendant and ordered the first defendant to pay the costs of both the claimant and the second defendant. The second defendant’s solicitors claimed a fixed success fee of 100% by reference to CPR Part 45, Part III. The first defendant argued that they were entitled to 12.5%. The Rule (CPR 45.16) provided that 100% should be allowed where the claim concluded at trial or 12.5% where the claim concluded before a trial or where the dispute was settled before a claim was issued.

It was common ground that there was no discretion to be exercised by a court as to which percentage was to increase.

The case had been called on. The claimants’ counsel had opened briefly introducing the parties’ representatives before giving way to counsel for the first defendant’s application to adjourn. The judge refused the application. The first defendants’ counsel then sought a short adjournment following which the admission was made. The judge said “I will adjourn for five minutes. I will start this case at quarter to”.

In Dahele v Thomas Bates & Sons Ltd, the Master in an employers liability disease claim found that a case settling on the day, and after the time fixed for trial, had concluded at trial.

In Sitapuria v Khan, a road traffic claim, the judge had taken a different view when a case was settled prior to it being opened.

The decision

The defendant argued that the various cases established the following principles:

  1. The trial occurred only when the contest on a substantive claim was opened or commenced as a contested hearing for an examination and determination of the substantive issues. It is the ‘contest’ that is the trigger to the recovery of 100%, prior to that the rules provide for 12.5%1.
  2. The rules do not refer to “after the matter is called on and opened” but to “a contested hearing”
  3. The intention of the rule is that the success fee be earned once the relevant risk arises – the risk arises only when the court commences adjudication on the substantive issue – the ‘contest’3.
  4. The disparity between 12.5% and 100% requires a hurdle of merit – if all that is required is an opening or an argument as to what could or could not be adduced in evidence in the substantive claim, then the claimants would have a significant incentive to come before the court on all manner of interlocutory matters to trigger the 100%.

Judge’s conclusion
When this case opened, all issues including the substantive issues of liability and damage were still contested. The claimants’ counsel opened properly, if briefly. The oral application to adjourn had been made in the context of the trial having been called on, the trial judge being present, and an appropriate opening of the trial having been made. There was no question of the judge putting back the opening of the trial. The only options were to proceed or adjourn. The hearing that started on 21 July 2011 was the contested hearing of liability which commenced before the claim settled. The second defendants’ solicitors were therefore entitled to a success fee of 100%.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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