Bird v Acorn Group Ltd

For fixed costs in a public liability claim brought under the EL/PL Protocol, listing a case for a disposal hearing after judgment with damages to be assessed is listing the claim for trial under CPR 45.29E(4)(c). If the claim settles after that listing and before the hearing, the higher third column of Table 6D Part B applies. The result does not depend on whether the hearing will certainly be final or contested when listed. Nor must the fixed-cost columns always be triggered in succession. Where a disposal listing occurs without prior allocation, later allocation or directions do not require reversion to the lower column. The special definition of trial in the fixed-cost regime governs.

Mr Terrance Bird brought a public liability claim against Acorn Group Ltd under the EL/PL Protocol. After Acorn failed to acknowledge service, default judgment was entered with damages to be assessed. The claim was then listed for a disposal hearing under Practice Direction 26, paragraph 12.2(1)(a), but settled before the hearing.

District Judge Campbell held that the listing triggered column 3 of Table 6D Part B for fixed costs. Acorn appealed by leapfrog appeal. The central issue was whether listing a disposal hearing constituted listing the claim for trial under CPR 45.29E(4)(c).

Appeal dismissed. The Court of Appeal held that listing a case for a disposal hearing after judgment, where the amount of damages remains to be assessed, is listing the claim for trial for the purposes of CPR 45.29E(4)(c). Settlement after that listing therefore attracts the third column of Table 6D Part B.

1. The purpose of a disposal hearing is, so far as possible, finally to dispose of the proceedings. This remains so whether the preceding judgment was entered by default, on admissions, summarily, or after a liability-only trial.
2. The fact that the hearing might ultimately be used only for directions did not prevent the listing from being a trial listing. A conventional trial may also become a directions hearing if an adjournment is required. Similarly, the possibility that the hearing might be uncontested was immaterial, since a defendant may attend and contest the assessment of damages even after default judgment.
3. The short and ordinarily paper-based nature of a disposal hearing did not alter the conclusion. Listing triggers preparatory work, including the gathering and service of written evidence under Practice Direction 26, paragraph 12.4(5), and the fixed costs reflect that work.
4. The fixed-cost columns are sequential in the sense that a later applicable column is reached, but they need not always operate in succession. A disposal listing may move the case directly from column 1 to column 3 where there has been no allocation. If the court later allocates the claim and gives directions, there is no reversion to column 2.
5. Lamont v Burton [2007] 1WLR 2814 provided useful pre-history because the same final-contested-hearing wording had been treated as covering a disposal hearing in the success-fee regime. Forcelux Limited v Binnie [2009] EWCA Civ 854 and [2009] EWCA Civ 1077 were distinguishable because they concerned the general CPR meaning of trial at a first possession hearing, not the special fixed-cost definition.

• Court of Appeal (Civil Division): The leapfrog appeal was dismissed on 11 November 2016. The court upheld the conclusion that column 3 of Table 6D Part B applied following listing of the disposal hearing: [2016] EWCA Civ 1096.
• Birkenhead County Court and Family Court: District Judge Campbell’s order of 16 February 2015 held that listing the case for a disposal hearing constituted listing for trial and triggered column 3.