Bird v Acorn Court of Appeal confirms that disposal hearing is a trial for the purposes of calculating fixed costs entitlement

In the much anticipated judgment in Terrance Bird -v- Acorn Group Limited [2016] EWCA Civ 1096, the Court of Appeal has provided clarification as to the correct interpretation of the tables in CPR 45.29C (RTA claims) and 45.29E (EL / PL claims), when calculating the fixed costs payable.

The case concerned a claim which had been commenced pursuant to the pre-action protocol for low value employer’s liability / public liability claims. In the absence of a response from the defendant, the claim exited the MOJ Portal.

Whilst the parties subsequently agreed liability, the issue of quantum remained in dispute.

Proceedings were issued in the County Court Money Claims Centre, but were subsequently transferred to Birkenhead County Court. The Court then listed the matter for a disposal hearing immediately, without any formal allocation to track. The claim ultimately settled prior to the hearing.

The outstanding issue remained as to what would be the relevant fixed costs payable under Table 6D Part B, in CPR 45.29E.

The Claimant contended that the correct fees payable were those in Column 3 (ie where the case settles ‘on or after the date of listing but prior to the date of trial’). It was argued that the listing of a disposal hearing was the listing of a ‘trial’ for the purposes of the rules. The result was that the fixed costs payable would be the total of £4,280.00 plus 30% of the agreed damages.

The Defendant argued, referring to CPR 45.29E(4)(c), that ‘a reference to ‘trial’ is a reference to the final contested hearing’. It was submitted that it could not be said that the disposal hearing would necessarily be a final hearing – as the Court may utilise the hearing for the purpose of giving directions.

Briggs LJ, giving the lead judgment, accepted that a disposal hearing as a ‘trial’, and therefore that the Claimant would be entitled to the (higher) costs in Column 3 of Table 6D Part B.

It was accepted that, notwithstanding that the disposal hearing may simply be used to give directions, Claimant’s solicitors may have had to commence work to prepare the case for the disposal hearing, which might include finalising evidence or other preparations equivalent to preparing for trial.

This judgment, whilst relating to an employer’s liability claim, will apply equally to public liability and RTA claims.

Insurers will need to be aware of the increased costs payable, particularly in claims from regions in which the practice of local court centres is to list cases for disposal hearings. In such cases, making early protective offers of settlement will be even more important in order to encourage early settlement and limit the total costs exposure.

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