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PI and Civil Litigation

Law - practice - procedure

08 JUL 2015

Colin James v David Andrew Ireland [2015] EWHC 1259 (QB)

Colin James v David Andrew Ireland [2015] EWHC 1259 (QB)
Costs - commencement of trial - level of success fee - fixed percentage - CPR Part 45

High Court, Queen’s Bench Division: Mr Justice Slade

12 December 2014

Summary
Where there was a hearing to determine when the trial would start, this did not constitute a ‘trial’ under CPR 45.15(6) (a) and therefore the uplift of 100% allowed under CPR 45.16 (1) (a) and 45.17(1) (a) did not apply.

Detail
This case involved a road traffic accident claim. On 8 June 2011, when trial was due to start before Mr Justice Griffiths William, the claimant made an application to adjourn the trial on issues of quantum. Judgment on the application was given after lunch, where the claimant was successful, and the trial was to proceed on issues of liability alone. The court adjourned for 15 minutes until 2.55pm. On reassembly the claimant asked for an adjournment, by consent, to 10.30am on 9 June 2011 as the defendant had given late disclosure of a disclosable document and served a supplementary witness statement. At 2pm on 9 June 2011, after consideration of the new evidence and realising that further witness statements were required, the case was stood out for the issue of liability to be determined at a future fixed date. The judge reserved the case to himself.

The issues to be determined on appeal related to costs and the level of successful recoverable by the claimant.
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On the appeal at first instance, Master Campbell held that the final contested hearing on the issue of liability had ‘commenced’ after the short adjournment on 8 June 2011 because: - the case had been called on, counsel had come into court, the judge had opened the trial and had sat listening to submissions about whether he should rise in the morning; the judge had been asked to read papers overnight and the request had been occasioned by the fact that the defendant had given late disclosure of a disclosable document and had served a supplementary witness statement. Thus, he found that the claim for an uplift of 100% be allowed, falling within the meaning of CPR 45.16(1) (a) and 47.17(1) (a) and not engaging CPR 45.16(b) and 45.17(b) as the trial had commenced.

The defendant appealed against the decision of Master Campbell to the High Court. On appeal, Mr Justice Slade disregarded all of Master Campbell’s arguments, described above, for finding that the trial had commenced. He also, contrary to Master Campbell, considered that, by the judge reserving the case to himself, it was implied that the trial had not started as it would be unnecessary to do this if the trial had already begun. He afforded this point considerable weight.

Further, he found that CPR 14.6(1) and 14.7(1) are not triggered by the commencement of any hearing of whatever nature related to the contested liability hearing, it must be the final hearing itself. In this case, there were hearings to deal with evidence and other case management on the afternoon of 8 and 9 June 2011 and this did not constitute the contested hearing of the liability issue within the meaning of ‘trial’ under CPR 45.15(6)(b). The proposals to adjourn the case, first to 10.30am on 9 June 2011 and then to 2pm on 9 June 2011were analogous to the facts considered in Gandy v King [2010] EWHC 90177 (Costs). Master Campbell had erred in treating the start of a hearing date related to the liability issue concerned with when the trial would start as the start of the contested trial hearing. The appeal was allowed. Applying CPR 45.15(6) (b), the trial on liability had not commenced. Accordingly, the claim for 100% success fee for counsel and solicitors fees was dismissed.

Comment
A number of cases in the past, including Sitapuria which was considered at this appeal addressed the issue of when a case is “opened” for trial for the purpose of determining whether 100% successful is recoverable. This case seems to reinforce this only occurs when substantive issues relating to the case is heard.

Adam Dyl & Louise Taylor, Anthony Gold
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