The appellant had initially commenced their claim under the Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims – the EL / PL Protocol (paragraph 1). The appellant was a customer of the respondent, and was injured while visiting the respondent’s premises (paragraph 7).
The appellant’s solicitor entered his claim via the online portal on 23 September 2013. Having received no reply from the respondent’s insurers, the appellant withdrew his claim from the portal in November 2013 and instead commenced proceedings on 7 April 2014. The respondent failed to acknowledge service. As a result, the appellant obtained a default judgment on 7 May 2014. On 12 May, a district judge ordered that the matter would be listed for a disposal hearing on 1 September 2014. Both parties were sent notification of the hearing on 14 May 2014 (paragraphs 7 – 9).
Before the disposal hearing took place, the case settled. A Tomlin Order was therefore filed with the court on 15 July 2014, recording the terms of settlement. In the absence of any agreement as to costs, the appellant’s bill was provisionally assessed by DJ Campbell on 5 December 2014 (paragraph 10), following which the respondent requested an oral review, confined to the issue of:
- which column within Table 6D part B applied for the purpose of fixing the costs?
District Judge Campbell decided that column 3 applied, taking the view that the listing of a case for a disposal hearing was a listing for trial within the meaning of that phrase in Table 6D. (paragraph 10).
The appellant appealed that decision.
The appeal was leapfrogged to the Court of Appeal, because it raised a novel point relevant to many cases bought under the EL / PL protocol.
In essence, the dispute turned on whether a disposal hearing should be regarded as “trial” within the meaning of CPR 45.29(E) (4) (c) – “the final contested hearing”.
The dispute was a public liability claim. Therefore, the relevant costs provisions could be found at Part B of Table 6D of CPR 45.29E (paragraph 3). Part B of Table 6D contains three columns, setting out three different fixed costs options, which vary according to the time before trial a case settles.
In this dispute, the main point of contention was whether the first or third column heading of fixed costs and damages should apply (paragraph 6). If the case was deemed to be settled under the provisions of the first column – “on or after the date of issue, but prior to the date of allocation under Part 26” – the permitted fixed costs would be £2,450 plus 17.5% of the damages. By contrast, if the case was deemed to have settled until the provisions of the third column – “on or after the date of listing but prior the date of trial” – the permitted fixed costs would be £3,790 plus 27.5% of the damages.
Previously, DJ Campbell had decided that column three should apply, on the basis that listing of a case for a disposal hearing was a listing of a trial, within the meaning of that phrase in table 6D (paragraph 10). The appellant argued that listing for a disposal hearing could not be listing for trial so as to bring the recoverable fixed costs within column 3 from the date of listing for (in summary) the following reasons:
- Applying the “final contested hearing” definition in Part 45.29E(4)(c), it could not be said at the date of listing for a disposal hearing whether the hearing would be either final or contested. Bearing in mind the 10 minute time allocation, the court might well use the hearing for the purpose of giving directions, pursuant to 26PD 12.4(2)(b). Where (as here) the listing followed a judgment in default of acknowledgement of service, the hearing might well be non-contested.
- If directions were given at the disposal hearing which included allocation of the quantification of damages to the fast track, pursuant to 26PD 12.2(1)(b), then if mere listing for disposal enabled the claimant to recover fixed costs under column 3, the allocation to the fast track would transfer him back to the less generous column 2, a counter-intuitive result if the three columns were meant to be sequential. The prospect of moving the case to a lower fixed costs band by obtaining allocation directions at the disposal hearing would be a disincentive to settlement by the defendant’s insurers.
- The court’s decision about a similar question in relation to first hearings of possession claims under CPR55 in Forcelux Limited v Binnie  EWCA Civ 854 and 1077 reinforced his analysis.
- Passages in Jackson LJ’s Interim Report suggested that the three columns in Table 6D part B were intended to be sequential, so that the third column could not be reached unless there had previously been allocation. He suggested that it was too early in the proceedings for the most generous costs scale to be triggered. Finally, Part 45PD para 4 suggested an assumption in the minds of the Rule Committee that disposal hearings were not trials (paragraph 11).
Delivering the Court of Appeal’s judgment, Lord Justice Briggs noted that the difference in recoverable costs between the two interpretations open to the court was “modest” in absolute terms – but could nevertheless have a “substantial” cumulative effect over many cases. This was why, he explained, the case had leapfrogged directly from DJ Campbell’s original order to the Court of Appeal.
Ultimately, Briggs LJ decided that the listing of the matter for a disposal hearing should be regarded as a listing for trial. As a result, he concluded that the most appropriate costs category from part B of table 6D should be column three (paragraph 12).
Explaining his decision in relation to the “not final or contested” point, Briggs LJ indicated that it would be very difficult to ever trigger the application of column three, if this requirement was made too onerous (paragraphs 14 – 16).
Discussing the sequencing of the columns in general, Briggs LJ suggested that once proceedings had reached at least column two, there could be no “back-tracking” to previous columns (paragraph 21).
And, in relation to the Interim Report argument relating to the missing column two requirement, he added that: “the fact that column two is jumped over because there is no intermediate allocation to the fast track seems to me to be just one of those events which means that the three columns will not always be triggered in succession” (paragraph 23).
“That by no means undermines the good sense of a conclusion that, once there has been a listing for disposal hearing, column three is triggered” he added.