Trial advocacy fees recoverable even if the matter settles on the day of trial

TRIAL ADVOCACY FEE IS RECOVERABLE, EVEN IF THE MATTER SETTLES AT THE “DOOR OF THE COURT” – NEW DECISION FROM THE APPEAL COURT.

The appeal court has found that, even where a matter settles “at the door of the court” and so no effective trial has taken place, the fixed trial advocacy fee is recoverable under CPR Pt 45 Pt IIIA. The court further found that a matter could be disposed of at trial even if it was by way of settlement rather than judgment.

The fixed costs regime under Part 45 has suffered from many changes and challenges. Lately, the rules about the award of indemnity costs if a Part 36 offer was beaten at trial were changed following the ruling in Broadhurst: thus negating much of what the fixed fee regime was supposed to achieve. In this most recent case, a recorder’s refusal to award a fixed trial advocacy fee under the fixed costs scheme when the matter settled “at the door of the court” was successfully challenged on appeal. 

The appellant had suffered personal injuries following a road traffic accident. A claim was notified under the Pre-Action Protocol for Low Value Personal Claims in Road Traffic Accidents so that the costs were subject to the fixed costs regime set out in CPR Pt.45 Pt.IIIA. A fast track trial was listed and, on the day, the recorder granted more time to the parties following their counsels’ indication that they might be able to settle.

The parties were able to come to an agreement and a consent order was drawn up that day which awarded the appellant his costs as set out under the fixed fee regime. The consent order contained the trial advocacy fee. However, the recorder awarded only two elements of fixed costs (the solicitors fixed costs plus a percentage of the damages) but refused to award the fixed trial advocacy fee. He concluded that no such sum was recoverable because the case had been settled before the final contested hearing had commenced.

The appellant submitted that the settlement did not occur prior to the date of trial so that section B of Table 6B in CPR r.45.29C was inapplicable and the court had to deal with the costs under section C (which deals with when the matter is resolved at trial) instead. 

The appeal was allowed. The final column in section B of Table 6B contained an obvious typographical error. The relevant heading ought to read “on or after the date of listing but prior to the date of trial”.

A consideration of fixed costs under section B could not occur because the case was not settled prior to the date of trial. Costs should have been dealt with under section C. It was no great leap to consider that the matter had actually been dealt with at trial, even if the resolution was by settlement rather than judgment. The intention of a fixed recoverable costs regime was to provide an agreed scheme of recovery which was certain and easily calculated, Nizami v Butt [2006] EWHC 159 (QB), [2006] 1 W.L.R. 3307 applied. The appeal court further considered that it was manifestly in the interests of justice for matters to be dealt with by consent rather than always proceeding to trial, even if the matter had come to trial. There should be no financial disincentive to counsel to attempt to negotiate settlement “at the door of the court”. The recorder had erred, and the appellant was able to recover the fixed advocacy fee.