Amin & Anor v Mullings & Anor

For the purposes of CPR 45, a claim concludes at trial only when it concludes after the contested hearing has commenced, whether by settlement or judgment. Settlement on the date fixed for trial, but before the hearing begins, attracts the applicable pre-trial uplift. The same meaning applies to solicitor’s and counsel’s fees. In a fast-track road traffic claim, settlement on that day attracts a 12.5% solicitor’s uplift and a 50% counsel’s uplift. A counterclaim is a separate additional claim under CPR 20. Its determination at trial does not make the claimant’s separately settled claim one concluded at trial.

The defendants appealed against a costs judgment awarding the claimants a 100% uplift on solicitors’ and counsel’s fees under CPR 45.16(1)(a) and 45.17(1)(a). Liability and the quantum of the claimants’ road-traffic claims had been agreed before the listed hearing, although the defendants’ counterclaim for vehicle-hire losses remained for determination on the trial date.

The Recorder held that the claimants’ claims concluded at trial because settlement occurred on the day fixed for the hearing. The issues were whether settlement before the hearing commenced could qualify as conclusion at trial, and whether the claimant’s claim and the defendant’s counterclaim together constituted one claim for the purposes of the fixed success-fee uplifts.

1. Appeal allowed. The 100% uplifts awarded on the claimants’ solicitors’ and counsel’s fees were set aside. A 12.5% solicitor’s uplift and a 50% counsel’s uplift were substituted, subject to detailed assessment if the costs were not agreed.
2. CPR 45.15(6)(b) defines a trial as the final contested hearing, or the contested hearing of an issue ordered to be tried separately. CPR 45.15(6)(c) therefore makes clear that a claim concludes at trial only where settlement occurs after the trial has commenced, or where judgment is given. The relevant trigger is commencement of the hearing, not the date fixed for it.
3. The distinction in CPR 45.16 between conclusion at trial and conclusion before trial has commenced is clear. Settlement before the hearing begins attracts the 12.5% solicitor’s uplift, even if settlement occurs on the listed trial date.
4. The same construction applies to CPR 45.17. In a fast-track road-traffic claim, settlement on the day fixed for trial but before the hearing starts attracts the 50% counsel’s uplift under the applicable time band. CPR 45.17(4) supports that conclusion for a claim concluded during the trial period but before commencement.
5. The court approved the construction in Sitapuria v Khan and did not follow Dahele v Thomas Bates & Son Ltd. A perceived gap in the counsel-fee provisions could not justify giving the clear solicitor-fee provision a different meaning.
6. Under CPR 20, a counterclaim is an additional and separate claim. The fact that the counterclaim was determined at the hearing did not mean that the claimants’ claims, already settled before the hearing commenced, were also concluded at trial.

• High Court (Queen’s Bench Division): appeal from the costs judgment of Mr Recorder Willetts dated 29 October 2010. The appeal was allowed and the fee uplifts were substituted.