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  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.
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