Kerry Underwood

FIXED COSTS IN SPLIT TRIAL CASES

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In September and October I am delivering my new course – Getting the Retainer Right – in 10 cities – details and booking form here.

It should go without saying that a fast track matter should never be listed for a split trial, and the superior courts are now strongly against split trials in any matter, but nevertheless it does still happen.

In those circumstances what is the correct level of fixed recoverable costs, and when is the claimant entitled to them?

At present the fixed recoverable costs scheme only applies to personal injury cases, and not all of those, and with a maximum value of £25,000, unless the matter has wrongly been placed on the portal.

This issue will become a far more significance as and when fixed recoverable costs spread to all civil litigation valued at £100,000 or less.

Although the rules do not deal with the matter, my view is that a successful claimant cannot be entitled to receive the fixed recoverable costs once he or she has won the liability trial, essentially for two separate reasons.

Firstly, both the preparation fee and the trial advocacy fee are in part calculated by reference to damages, and so it would be impossible to quantify the fixed recoverable costs.

Clearly if the matter is going to trial it has reached the final stage of the Table in CPR 45.29 Table 6B, that is issued – Post Listing and Pre-Trial.

The fixed recoverable costs in the different type of ex-portal claims which have reached that stage are:

 

£

 

  • road traffic accident    2,655 plus 20% of damages

 

  • employers liability    4,280 plus 30% of damages

 

  • public liability    3,790 plus 27.5% of damages

 

In all types of work the trial advocacy fee is fixed by reference to the amount awarded by the court as follows:

 

£

 

  • up to £3,000     500

 

  • £3,000 to £10,000     710

 

  • £10,000 to £15,000 1,070

 

  • £15,000 and over  1,705

 

The second reason is that the defendant may have made a Part 36 offer, which the claimant has failed to beat.

Let us assume that the defendant had offered £10,000 very early on in the case, and the claimant then wins on liability, but obviously without quantum being determined, as it is a split trial.

At that stage no one will know whether or not the defendant’s Part 36 offer will be beaten or not, as obviously that will be determined at the quantum trial.

The principle applies even if no Part 36 offer has been made, and in any event a defendant who has lost a liability trial is then very likely to make a Part 36 offer on quantum.

That raises an interesting, and as yet unanswered, question as to what happens in those circumstances.

The claimant has had to do all of the work in readiness for a liability trial, and has thus reached the final stage.

After the liability trial the defendant, for the first time, makes a Part 36 offer, which the claimant then fails to beat at the quantum trial.

What happens to costs?

My view is that the claimant still gets the full preparation costs, that is in accordance with the formula set out above, together with the trial advocacy costs of the liability trial, and does not have to pay the defendant any costs in relation to preparation.

The claimant would not get the costs of the second trial, and would have to pay the defendant’s costs of that trial.

I am unaware of any case on this point.

In relation to the fees for the quantum trial, neither party should get any extra preparation costs as the fixed fee, calculated in relation to the formula above, is intended to cover all liability and quantum issues and the fixed recoverable costs scheme does not differentiate between cases where liability is admitted, and those where it is not admitted.

Thus if a case is settled just before trial for, say, £10,000, then the claimant recovers exactly the same level of fixed costs whether liability was admitted only just before trial, or where it had been admitted at the very beginning of the case, meaning that almost no work on liability was done.

The idea is that it is a swings and roundabout system.

The advocacy fee is a freestanding view and generally a successful claimant should get a second advocacy fee if there is a liability trial and a quantum trial, although again, there is no authority on this point.

Presumably the amounts of damages awarded at the quantum trial would also determine the level of fixed advocacy costs for the liability trial, in accordance with the above formula.

Outside the field of personal injury there is no system of Qualified One-Way Costs Shifting, and therefore where there is a liability trial at which the defendant succeeds, then that is the end of the matter and the defendant will get its costs in accordance with the fixed recoverable costs formula.

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Written by kerryunderwood

August 31, 2018 at 8:10 am

Posted in Uncategorized

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