ARC Costs recently settled a fixed costs case in which the Defendant refused to pay a Counsel’s Trial Brief fee as the case settled on the day of the Trial, but purportedly prior to the Trial took place.

CPR 45 Table 6B

CPR 45.29A applies to specific types of claims under the fixed costs regime, namely those which started under the Pre-Action Protocols for Low Value Personal Injury Claims in Road Traffic Accidents or for Low Value Personal Injury Claims.

Under CPR 45.29B,

“Subject to rules 45.29F, 45.29G, 45.29H and 45.29J, and for as long as the case is not allocated to the multi-track, if, in a claim started under the RTA Protocol, the Claim Notification Form is submitted on or after 31st July 2013, the only costs allowed are—

(a) the fixed costs in rule 45.29C;

(b) disbursements in accordance with rule 45.29I.R 45 applies only if the claim is no longer being pursued under the respective Protocol or the Stage 3 Procedure in Practice Direction 49F. “

Under CPR 45.29C

“(1) Subject to paragraph (2), the amount of fixed costs is set out in Table 6B.

(2) Where the claimant—

(a) lives or works in an area set out in Practice Direction 45; and

(b) instructs a legal representative who practises in that area,

the fixed costs will include, in addition to the costs set out in Table 6B, an amount equal to 12.5% of the costs allowable under paragraph (1) and set out in Table 6B.

(3) Where appropriate, VAT may be recovered in addition to the amount of fixed recoverable costs and any reference in this Section to fixed costs is a reference to those costs net of VAT.

(4) In Table 6B—

(a) in Part B, ‘on or after’ means the period beginning on the date on which the court respectively—

(i) issues the claim;

(ii) allocates the claim under Part 26; or

(iii) lists the claim for trial; and

(b) unless stated otherwise, a reference to ‘damages’ means agreed damages; and

(c) a reference to ‘trial’ is a reference to the final contested hearing.”

CPR 45 Table 6B refers to a specific table under part 45.29 of the Civil Procedure Rules. Table 6B relates to fixed costs for claims which have been allocated to the fast track. If a claim falls into this category, the claimant will be entitled to recover the fixed costs in Table 6B.

Trial brief dispute case study : Facts of the case

The disputed issue between the parties related to Counsel’s brief fee in the sum of £710.00 plus VAT. The Defendant in the case did not agree that they were required to pay the Counsel’s brief fee due to the fact that the case settled on the day of the trial.

The remaining fixed costs and disbursements had already been agreed between the parties.

The case was in relation to a Claimant who had suffered burn injuries whilst at work. The Defendant denied liability for the case and the claim, therefore left the portal and proceeded under CPR 45 Section IIIA.

Fast Track Directions were given, with the matter listed for trial at a later date.

The Defendant made a non-Part 36 Offer to the Claimant, which was inclusive of costs. The Claimant made a counter-Part 36 offer and the Defendant made a further Part 36 Offer.

The Claimant rejected the Part 36 offer and proceeded to brief the Claimant’s Counsel.

The Defendant submitted a further Part 36 Offer, although it was made less than 21 days before the Trial.  Preparations were made for Trial and Counsel attended Court on the day of the hearing, at which point the Defendant’s Part 36 Offer was accepted by the Claimant.

Submissions in Relation to the Trial Brief Fee (CPR 45 Table 6B)

In relation to the Counsel’s Trial Brief, the Defendant argued that they were not required to pay the costs of the same due to the fact that the Trial hadn’t begun. This was because the matter settled by way of acceptance of a Part 36 Offer, which was approved at the hearing.

The Claimant disagreed and argued the following points:

a) the brief fee triggers on the day of trial, as per the wording of the stages in CPR 45 Table 6B (Stage B for listing states “prior to the date of Trial”) and;

b) even if a) did not apply, Counsel had attended the hearing listed for Trial and it had commenced as soon as they walked through the Court doors.  Even if this was to confirm acceptance of a Part 36 Offer, the Trial itself had technically begun.

ARC Costs argued that there could be no justification for the Defendant’s late offers, that the Defendant should not get the benefit of its own non-compliance when it comes to costs, and that the Part 36 Offer remained open to be accepted to the day of Trial.

The Claimant’s Counsel was briefed before receipt of the Defendant’s (accepted) offer, in readiness for a trial only seven days later.

We asserted that it was reasonable and proportionate to brief Counsel seven days before a Trial, on a matter where liability was disputed, and all issues were contested

The claim settled on the day of trial (the trial being listed at 10am) following the Claimant’s acceptance of the Defendant’s late made Part 36 Offer.  Had they not wished for it to be open up until the day of Trial, the offer should not have been made as a Part 36 Offer, and termed as such.

In our arguments, we relied upon the case of as John Coleman v Daniel Townsend PHW 180767 in which Master Haworth of the Senior Courts Costs Office (SCCO) made that important distinction of cases being settled before Trial and cases being settled on the day of the Trial.

Coleman settled on the day before trial, not on the date of trial, as in the instant claim. Coleman thus worked to assist the Claimant in the instant claim.

The Counsel’s fees dispute proceeded to a Hearing and the representative for the Defendant submitted that the Claimant should be limited to fixed costs, as it was an “interim hearing”.

The representative for the Claimant responded to the interim hearing point with reference to Parsa v Smith, to say that it was not an interim hearing, but very much a final hearing, and it could not be construed as an interim hearing.

Judge’s Decision

The District Judge in the case agreed with the Claimant and ARC Costs. The District Judge then went on to summarily assess the Claimants N260 at £1,392.20. That consisted of 3 hours x £177.00, plus £400.00 for Counsel’s attendance, plus VAT, plus the Court Court fee.

The Order for Costs stated the following:

1. The Defendant pays the Claimant’s Counsel’s trial advocacy fee in the sum of £710.00 plus VAT, totalling £852.00.
2. The Defendant pays the Claimant’s costs of this application, summarily assessed at £1,392.20.

How Can ARC Costs Assist?

The Costs Draftsmen and Costs Lawyers at ARC Costs are highly experienced in the recovery of legal costs.

We can assist in the recovery of disputed Counsel’s fees and disbursements by contacting the paying party in an attempt to obtain agreed costs.

We can also assist in the recovery of your costs at detailed assessment. We can assist in the drafting of your bills of costs, points of dispute and replies to points of dispute. If an agreement cannot be reached as to costs, we can further assist by providing representation at detailed and porvisional assessment hearings at Court.

If you require any free initial advice, or our assistance with regards to any aspect of costs, please email us at info@arccosts.co.uk, or contact us via the Contact Us page and one of the team will get in touch on the same working day. Our team can also be called on 01204 397302.

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