Kerry Underwood


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I deal with this subject in detail in my forthcoming book – Personal Injury Small Claims, Portals and Fixed Costs available here.


Recently I considered the issue of the correct level of fixed costs when a matter is listed for a disposal hearing, following the decision of the Court of Appeal in Bird v Acorn – see my post – DISPOSAL HEARINGS: KEY COURT OF APPEAL DECISION.


What fixed costs are payable where, on allocation, or shortly after, the court gives directions through to trial, including listing the matter for trial and giving a trial date?


Thus the matter moves from being in the first post-issue stage of   Issued – Post-Issue Pre-Allocation straight through to the third stage of IssuedPost-Listing Pre-Trial without ever being in the second stage of Issued – PostAllocation Pre-Listing.


Thus on the face of it the defendant loses the chance of settling the claim in that second phase as the matter has already been listed for trial.


It makes a significant difference in costs:


RTA                 £775

EL                     £930 plus 5% of damages

PL                     £725 plus 5% of damages


It also obviously makes the jump between costs on a case settled pre-allocation and one settled post allocation much greater. The figures become:


RTA                 £1,495

EL                    £1,950 plus 10% of damages

PL                    £1,340 plus 10% of damages


A number of courts are following this procedure, and indeed it makes perfect sense.


It has been suggested that the pre-trial checklist could be used as the trigger point for the third and final phase of pre-trial costs and that prior to that it will be in the second phase.


I do not think that that is correct – if the matter has been listed then it is post-listing, whether or not a pre-trial checklist has been done.


In any event many courts are dispensing with pre-trial checklists.


In Bird v Acorn Ltd [2016] EWCA Civ 1096


the Court of Appeal held that listing a case for a disposal hearing is a listing for trial thus triggering third stage costs – that is issue – post-listing pre-trial.


It seems to me that if a matter is actually listed for trial on allocation then it does indeed move straight through to third stage higher costs.


Clearly the matter has been allocated and therefore the first post-issue stage is out of the way – that is the issue – post-issue pre-allocation stage.


Logically it cannot be issued – post-allocation pre-listing as it has been listed.


Thus I am satisfied that where, on allocation, or shortly after, the court gives directions through to trial, including listing the matter for trial and giving a trial date then column 3 costs are engaged, that is the highest level of pre-trial costs.


The principle here is important anyway, but will have much greater importance as and when Fixed Recoverable Costs spread to other types of civil litigation and to much higher value claims.


Please see my blog:-



Written by kerryunderwood

November 17, 2016 at 6:43 am

Posted in Uncategorized

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