Bird v Acorn Group Ltd [2016] EWCA Civ 1096

William Dean summarises a judgment giving “authoritative guidance” on “a short but important point”.

The question and the answer

On 11^th November 2016 the Court of Appeal gave judgment on “whether a disposal hearing listed for the quantification of damages payable after judgment … is, or is not, a trial” for the purposes of the fast track fixed costs provisions.

The answer is yes; or, in the words of Briggs LJ: “listing a case for a disposal hearing following judgment, pursuant to Part 26PD12, is listing for trial, for the purposes of triggering column 3 in Table 6D part B where a case which originated in the EL/PL Protocol settles after listing” (paragraph 12).

The judgment is available here.

The question, in more detail

The question is of importance because of the formulation of the fixed costs tables in Section IIIA of Part 45. Part B of each of Tables 6B (for RTA claims) and 6C and 6D (for EL/PL claims respectively) provide for different levels of base costs depending on the stage a claim has reached at the point of settlement. What happens in a case which, after issue, has not been allocated but has been listed for disposal – and then settles? Does it fall within column 1 of part B (“prior to allocation”) or column 3 (“[o]n or after the date of listing but prior to the date of trial”)?

The answer, in more detail

In Briggs LJ’s judgment, with which Arden and Underhill LJJ agreed, it falls within column 3.

His Lordship gave five main reasons for his conclusion.

1. The purpose of “listing for disposal” is to (attempt to) dispose finally of the case. The only outstanding matter is the assessment of damages (and to that extent it does not matter in what form judgment has been entered). If the possibility that such a hearing is not effective were sufficient to take it out of column 3 then no listing would ever fall into column 3. (Paragraphs 13 and 14.)
2. It does not matter that the hearing may prove to be uncontested. Such a possibility is always the case, even with “traditional trials”. (Paragraph 15.)
3. Listing for a disposal hearing is “the trigger for the claimant (and any other party which wishes to take an active part at that hearing) to prepare and serve the requisite evidence” and thereby incur further costs. (Paragraph 16.)
4. There is a “pre-history”, within former versions of the rules, to the phrase “final contested hearing” which supports the conclusion. (Paragraphs 17 to 19.)
5. Passages in Jackson LJ’s interim report (on civil costs reform) suggest that the columns in Table 6D part B were “intended usually to be steps in a ladder”. (Paragraph 23.)

The effect of the answer

Briggs LJ noted that the question was “a short but important point” and that although the “difference is, in absolute terms, a modest one… the cumulative effect of its application to numerous cases is substantial” (paragraph 1).

This is now authoritative guidance from the Court of Appeal on the point, which was previously the subject of conflicting first instance decisions. Although the case is strictly authority only for PL claims (because Table 6D was engaged), the language used in the rules in respect of RTA and EL claims is identical.