FAST-TRACK TRIAL FIXED COSTS OUTSIDE FIXED RECOVERABLE COSTS
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Relatively few lawyers are aware that there has for some time been fixed trial costs for all Fast-Track matters except those covered by Fixed Recoverable Costs, which are subject to a separate Fixed Trial Costs Regime.
The Fixed Recoverable Costs Scheme covers all ex-portal claims, whether allocated to the Fast-Track or the Multi-Track but do not cover cases which would be allocated to the Small-Claims Track.
Broadly the extent of the portals is all claims up to £25,000.00 in value arising out of road traffic accidents or employers’ liability or public liability cases, although there are some exceptions.
Any Fast-Track trial not covered by Fixed Recoverable Costs is covered by a separate regime of Fast-Track Trial costs. This will cover claims which are employers’ liability claims but which do not go into the portal, for example industrial disease claims where there is more than one defendant. There is far more flexibility in this scheme.
The Fast –Track fixed costs cover all non-personal injury cases without exception, and some personal injury cases.
The Fixed Recoverable Costs Scheme is dealt with in table 6 – see my blog FIXED COSTS, ALL THE PORTALS & FIXED RECOVERABLE COSTS.
Other Fast-Track trial costs covered by Table 9 which is contained in CPR 45.38.
The Fixed Fast-Track Trial Costs are as follows:-
|Value of the claim||Amount of costs|
|No more than £3,000.00||£485.00|
|More than £3,000.00 but not more than £10,000.00||£690.00|
|More than £10,000.00 but not more than £15,000.00||£1,035.00|
|Over £15,000.00 where proceedings issued on or after 6th April 2009||£1,650.00|
These are very slightly below the Table 6 Recoverable Costs advocacy fees.
However CPR 45.37(1) makes it clear that these Fast-Track trial costs cover the cost of preparing for the hearing as well as appearing at the trial of the matter where as in Fixed Recoverable Costs under Table 6 the advocacy fee is an add-on to the previous fixed costs. No doubt it is intended to reflect that there is preparation for a trial but the two are not directly comparable and Table 6 Fixed Recoverable Costs is clearly more generous than Table 9.
In all cases VAT may be added on to the fees, both in Table 6 and Table 9.
In Fast-Track trial matters CPR 45.37 states that:-
“‘trial’ includes a hearing where the court decides an amount of money or the value of goods following a judgment under Part 12 (default judgment) or Part 14 (admissions) but does not include –
- the hearing of an application for summary judgment under Part 24; or
- the court’s approval of a settlement or other compromise under rule 21.10.”
CPR 45.38(2) makes it clear that the figures are fixed and that a court may award neither more nor less unless it makes a decision to award no costs at all or CPR 45.39 applies.
The court is free to apportion the amount awarded between the parties to reflect their respective degrees of success on the issues at trial.
Where the claim is lost then for the purposes of quantifying the cost to be awarded to the successful defendant the value of the claim is deemed to be the amount specified in the Claim Form, excluding interest and costs.
Non-monetary and hybrid claims
By CPR 45.38(4) where the claim is only for a remedy other than the payment of money the claim is deemed to be £3,001.00 to £10,000.00 giving a fixed advocacy fee of £690.00.
Where there is a hybrid claim, that is a claim seeking a remedy other than the payment of money as well as the payment of money, then the value of the claim is deemed to be £3,001.00 to £10,000.00 or the value of the money claimed, whichever is higher.
Under CPR 45.38(6) where a defendant makes a counterclaim against the claimant and that has a higher value than the claim and the claimant succeeds on both matters then the value of the claim is deemed to be the value of the defendant’s counterclaim.
CPR 45.39 sets out the circumstances where the court is allowed to depart from the fixed costs set out in Table 9 in CPR 45.38(1).
Legal representative in addition to advocate
Where a party’s legal representative attends the trial in addition to the advocate and the court considers that that was necessary to assist the advocate and the court awards Fast-Track trial costs to that party, the court may award an additional £345.00 in respect of the legal representative’s attendance at the trial (CPR 45.39(2)).
If the court orders a separate trial of an issue, for example a spit trial on liability and quantum, then it may award an additional amount not exceeding two thirds of the amount of the fixed advocacy costs but subject to a minimum award of £485.00 (CPR 45.39(3) and (4)).
Litigants in person
In relation to litigants in person the court may award costs in their favour, provided that they can prove financial loss, up to two thirds of the fixed advocacy costs.
If a litigant in person cannot prove financial loss then the court may award to that person an amount in respect of the time spent reasonably doing the work at the rate specified in Practice Direction 46, currently £19 an hour.( CPR 45.39 (5)).
Mixed result cases
Where a defendant makes a counter-claim against the claimant and the claimant succeeds on that claim and the defendant also succeeds on the counter-claim then the court looks at each sum separately and makes an award of the difference of fixed advocacy costs, if any, to the party entitled to the higher award of costs.
Thus if a claimant got say £12,000.00 and the counter-claimant £9,000.00 then the calculation is as follows:-
Claimant’s costs £1,035.00
Defendant’s costs £ 690.00
The defendant will be ordered to pay the claimant the difference, that is £345.00 (CPR 45.39(6)).
Improper or unreasonable conduct at trial
Where the court considers that the recipient of Fast-Track trial costs has behaved unreasonably or improperly during the trial, it may award that party less than the fixed costs sum.
Likewise where the paying party has behaved improperly during the trial the court may award extra costs.
The conduct of the receiving party qualifies for a reduction if it is either unreasonable or improper but the paying party can only be penalised if its behaviour is improper and not simply unreasonable.
The figures in those circumstances are entirely within the discretion of the court.
The reduction or addition can only be made for conduct at trial and not during the life of the claim.