James v Ireland

For the purposes of CPR 45, a trial commences only when the final contested hearing, or the contested hearing of an issue ordered to be tried separately, begins. The mere listing of a case, attendance of counsel, judicial reading, or consideration of an application to adjourn does not commence the trial. Nor does a hearing that merely puts back the proposed start of the substantive hearing because further evidence or instructions are required. Where the court reserves the case to itself for a future hearing and stands the issue out of the list, that may strongly indicate that the trial has not begun. A settlement reached before commencement of the contested hearing therefore attracts the lower applicable success fee.

The defendant appealed from Master Campbell’s decision of 7 August 2014. The Master held that the liability trial in a road traffic accident claim had commenced on 8 June 2011 and that the claimant was consequently entitled to a 100% success fee under CPR 45.16 and 45.17.

The claim had been listed for trial of quantum and liability. The quantum issue was adjourned on the first day. Thereafter, further disclosure revealed a potentially significant independent witness, and the parties sought successive adjournments of the liability hearing. The case was ultimately stood out of the list and settled before the rescheduled hearing. The central issue was whether the liability trial had commenced before settlement.

1. Appeal allowed. The claimant’s claim for a 100% increase in solicitors’ and counsel’s fees was dismissed.

2. Under CPR 45.15(6)(b), a reference to trial means the final contested hearing or the contested hearing of an issue ordered to be tried separately. The hearing does not commence merely because the case is called on and counsel attend court. The court must identify whether the final contested hearing of the relevant issue has begun.

3. The application to adjourn quantum was not the liability trial. After that application was determined, the liability hearing was repeatedly put back to enable the parties to consider late disclosure, trace an independent witness, obtain statements and take instructions. Those steps concerned preparation for the contested hearing and did not constitute its commencement.

4. The judge’s reading of papers, discussions about evidence, and exchanges concerning the future scope of the contributory-negligence issue did not amount to an opening of the liability trial. The transcript showed that counsel had not opened the liability case and that the judge did not yet know the scope of the principal defence.

5. The reservation of the case to the same judge for a future hearing was a strong indication that the liability trial had not commenced. If it had commenced, the hearing would have been adjourned rather than the issue being stood out of the list.

6. The reasoning in Gandy v King [2010] EWHC 90177 (Costs) was of assistance, and the facts bore striking similarities. Loizou v Gordon & Patsias [2012] EWHC 90221 (Costs) was distinguishable because the application to adjourn there had been refused and the contested hearing had therefore begun.

• High Court (Queen’s Bench Division): appeal from Master Campbell allowed. The Master’s conclusion that the liability trial had commenced was set aside, and the claim for the 100% success-fee uplift was dismissed.
• Master Campbell: held that the final contested hearing of liability had commenced on 8 June 2011 and allowed the 100% uplift.