Kerry Underwood


with 9 comments

In Bird v Acorn Group Ltd [2016] EWCA Civ 1096, judgment delivered on 11 November 2016, the Court of Appeal, in a ruling of enormous importance, has held that where a disposal hearing takes place then the full, highest level of pre-trial fixed costs are payable.

Table 6B Part B lists the three stages within which the settlement can be reached:-

–              on or after the date of issue, but prior to the date of allocation under Part 26;

–              on or after the date of allocation under Part 26, but prior to the date of listing;

–              on or after the date of listing but prior the date of trial.

The issue has been which stage should apply when a matter has been listed for a disposal hearing but has not been allocated to a track and settles before that hearing, or at the hearing.

Clearly it can be argued that that is on or after the date of issue, but prior to the date of allocation under Part 26 and therefore the fixed costs should be the stage 1 costs of £1,160.00 plus 20% of damages.

Equally it can be argued that if a matter has been given a date for the disposal hearing then it is in stage 3, that is “on or after the date of listing but prior to the date of trial”. In that the case the fees payable are £2,655.00 plus 20% of damages.
Thus the difference in each road traffic accident matter is £1,495.00 plus VAT, that is £1,794.00 including VAT.

The principles apply in relation to employers’ liability and public liability cases, as well as road traffic accident cases and will also apply to any other type of work where fixed costs are introduced, for example clinical negligence.

However numerically road traffic accidents dominate and in the four months between 1 May 2016 and 31 August 2016, 270,306 matters were issued on the RTA Portal, giving a projected annual figure for 2016/17 of 810,918 RTA Portal claims, and therefore potentially Fixed Recoverable Costs claims.

Not only is this decision a huge boost for claimants and their solicitors, but it is also indicative of a recent trend in decisions of the Supreme Court and the Court of Appeal, which, depending on your viewpoint, have been pro-claimant or redressing the balance.

As my previous blogs have indicated the wording of the rules left it open to the courts to adopt either position, and unsurprisingly some took one view and other courts took a different view. Both were perfectly legitimate and proper under the wording of the Civil Procedure Rules.
This key ruling should also help to quell the fears of civil litigators about the extension of Fixed Recoverable Costs to all civil work.

For a more detailed analysis of the wording of the Civil Procedure Rules and the issues involved here please go to my post: Disposal Hearings: Which Fixed Costs are Payable.

Please see another one of my related blogs:-



Written by kerryunderwood

November 11, 2016 at 2:20 pm

Posted in Uncategorized

9 Responses

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  1. Fantastic . Merits a early finish for I and the team with a few beers ! Cheers Kerry for keeping us all in the know


    November 11, 2016 at 2:56 pm

  2. Reblogged this on | truthaholics.


    November 11, 2016 at 2:59 pm

  3. Glad to be of use Gavyn!


    November 11, 2016 at 3:11 pm

  4. Firstly, thank you for getting this out to us so quickly and for including a link to the judgment.
    Secondly, I apologise for pedantry, but your opening paragraph refers to cases in which a disposal hearing “takes place”. I appreciate that is so, but of course this decision was mainly concerned with cases which had not been allocated to track but in which a disposal hearing had been “listed”, but then settled before the hearing. The court has confirmed that we get ‘post listing, pre trial FRC’ rather than ‘post issue, pre allocation FRC’. Hurray.


    November 11, 2016 at 5:00 pm

  5. Andy

    Correct, but I think that the principle is the same. Without this clear ruling my view is that even after a hearing it would have been possible to argue Stage 1, rather than Stage 3 costs. Advocacy fees are of course free-standing. There is no logic in saying that you get one set of preparation costs if it goes to a hearing and another if it is settled the day before.



    November 11, 2016 at 5:09 pm

  6. The judgment is carefully qualified to relate to cases where there has been judgment in favour of the Claimant.

    What do you/your readers think about a contested case with no judgment in favour of the Claimant, where the Court simply gives Directions at allocation stage which include Directions for trial and a trial date, dispensing with pre-trial checklists? We get these a lot. I suspect that this question could yet be the subject of further litigation, but do you guys agree that the decision extends into this situation to give the Claimant “post-listing and pre-trial” costs even if the matter settles immediately after the Court gives Directions and before compliance with any of them?

    Simon Green

    November 14, 2016 at 12:09 pm

  7. Simon

    Very good point. Obviously there would not be a disposal hearing without judgment. Clearly in the situation you are talking about the matter has been allocated, so the issue is whether the claimant gets Stage 2 or Stage 3 costs. The headers to the 3 stages envisage a period where the matter is post allocation but pre-listing. As a matter of logic it is possible for that to be the 5 minutes or whatever between the judge allocating and listing all at the same hearing, If a trial date is given then it cannot be :prior to the date of listing” and, in my view, must be ” On or after the date of listing but prior [to] the date of trial”, that is Stage 3 applies.

    So, my view is yes, the decision extends to this situation, but I suspect that ,as you say, this will be subject to litigation – and a separate blog by me!



    November 14, 2016 at 4:36 pm

  8. Hi Kerry, immediately on release of the judgment I have had clients ask whether a “disposal” hearing includes an infant settlement hearing. I am not convinced and therefore I would be grateful for your opinion. Many thanks, Vicky.


    November 15, 2016 at 11:48 am

    • Vicky

      On the face of it an Infant Approval Hearing could come within the definition of “trial” as set out in this Court of Appeal decision.

      It could also constitute a disposal hearing within the meaning of Practice Direction 26.12.4.

      This would be logical given that in a case involving a child the matter should be prepared fully in exactly the same way as for a disposal hearing, so that the court has all of the necessary information to enable it to decide whether or not the proposed settlement should be approved.

      Thus in such cases, if you are acting for the claimant, I would argue for the third stage fixed costs, together with the full advocacy fees.

      If you are acting for defendants I would argue that infant approvals are a self-contained code and that the Court of Appeal decision here does not affect such hearings.



      December 5, 2016 at 9:08 am

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