Fixed Costs and the RTA Protocol

Recovering the “Fixed Trial Advocacy Fee” for negotiating at the door of Trial

In 2011 in the case of Amin & Hussain –v- Mullings & Royal & Sun Alliance [2011] EWHC 278 (QB) the claim settled during negotiations at the Court door. This resulted in the receiving party being unable to recover a 100% success fee on Solicitor and/or Counsel’s fees despite the fact that the matter proceeded to Court on the day of Trial. The key point is that the matter settled during negotiations at the Court door and did not go before a Judge as a contested hearing.

The deciding factor was that CPR clearly defined a Trial as a contested hearing. A settlement at the door of Trial was not a contested hearing.

Fast forward to the implementation of fixed costs in the RTA Protocol where there has been an interesting decision in the case of Mendes v Hocthtief (UK) Construction Ltd [2016] EWHC 976 (QB).

The matter had been listed for a final contested hearing on 11 December 2015. Proceedings had been issued under Part 7 on the basis that liability was in dispute. On the morning of 11 December 2015 the parties were permitted more time to negotiate, and settlement was achieved in the sum of £20,000 plus costs. The Court recorded the settlement and assessed costs, but failed to award the fixed trial advocacy fee in accordance with CPR 45.29C on the basis the matter had concluded prior to a contested hearing.

The Claimant appealed and contended that the applicable fixed costs had to be those where the claim had been “disposed of at trial” (section C costs) on the basis that the claim had progressed beyond the stage where settlement was achieved “prior to the day of trial” (section B costs).

On appeal, the Hon. Mr Justice Coulson considered the facts of the case and concluded –

“…I consider that section C applies on the facts of this case. It was the date of the trial. Counsel twice asked the learned recorder for more time which he granted and in consequence the settlement occurred. I do not believe that it strains the language of the rule to conclude that this was a case where the claim was ‘disposed of at trial’, albeit by way of settlement rather than judgment”.

Parallels can be drawn between each case. In the case of Amin & Hussain v Mullings & Royal & Sun Alliance, it was the success fee that was limited as a result of the matter settling prior to Trial. And rightly so. The receiving party’s representatives had avoided the risk of a contested hearing, and were awarded base costs plus 12.5% success fee. The recoverability of the abated brief fee, to include the preparatory work to attend the Trial, was not in dispute. This is the same with the case of Mendes v Hocthtief (UK) Construction Ltd. Counsel undertook significant work at the door of Trial in order to avoid a contested hearing. The Court of Appeal quite rightly remunerated Counsel for the work undertaken.

A full copy of the Judgment can be found here.

If you have any questions or queries in relation this blog please contact Joanne Chase (joanne.chase@clarionsolicitors.com and 0113 336 3327) or the Clarion Costs Team on 0113 246 0622.

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