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 11th 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.

Latest News & Events

The Dekagram: 20th May 2024

We trust that our readers have been enjoying the Spring sunshine; the team have spent their time in the sun wisely, reading cases so you don’t have to. First we noted a decision which considers the interplay between English and Scottish guardianship; secondly we read…

The Dekagram: 13th May 2024

Last week brought the news that the Australian airline Qantas and the Australian Competition and Consumer Commission have agreed to resolve their dispute over cancelled flights by asking the court to impose a $100 million fine, together with an undertaking by the airline to pay…

Max Melsa appears in Court of Appeal in Re D (Children: Interim Care Order: Hair Strand Testing) [2024] EWCA Civ 498

Max Melsa represented the children, through their Children’s Guardian, in the first case to reach the Court of Appeal specifically dealing with the interpretation of Hair-Strand Tests in care proceedings. The appeal was made by the mother against the interim separation of three children from…

Subscribe to our mailing list

Deka Chambers: 5 Norwich Street, London EC4A 1DR

© Deka Chambers 2024


Portfolio Builder

Select the expertise that you would like to download or add to the portfolio

Download    Add to portfolio   
Title Type CV Email

Remove All


Click here to share this shortlist.
(It will expire after 30 days.)