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,