Mendes v Hochtief (UK) Construction Ltd

Under CPR Part IIIA, a trial advocacy fee is recoverable where a claim settles on the date fixed for trial, even if the final contested hearing has not begun. The relevant pre-trial stage ends on the date of trial, not when the hearing commences. The fixed-cost provisions are intended to provide a comprehensive scheme, so a settlement on the trial date should not fall into a gap between the pre-trial and trial provisions. The trial advocacy fee remunerates preparation and attendance as well as advocacy actually performed. Earlier authorities concerning provisions expressly referring to settlement before commencement of trial do not govern the differently worded regime.

The claimant appealed from a decision of Mr Recorder Palmer QC in the Swindon County Court concerning fixed recoverable costs. The personal-injury claim had begun under the RTA Protocol, liability was denied, and proceedings were issued under CPR Part 7. The case was allocated to the fast track and listed for trial. On the trial date, after discussions before the recorder, the parties settled by consent before the contested hearing began.

The recorder awarded the applicable fixed costs but refused the trial advocacy fee. The issue on appeal was whether that fee was recoverable where settlement occurred on the date fixed for trial but before the final contested hearing commenced.

1. Appeal allowed. Permission to appeal was granted and the recorder’s decision was overturned. The trial advocacy fee was recoverable.

2. The final column in section B of Table 6B contained an obvious typographical error and was to be read as referring to settlement “on or after the date of listing but prior to the date of trial”. A settlement on the date of trial did not fall within section B, because it did not occur before that date.

3. The reference to “trial” as the “final contested hearing” did not introduce a requirement that the hearing must have commenced. The relevant date was the date on which the final contested hearing took place, or would have taken place but for settlement. If the hearing were adjourned or relisted, the adjourned or relisted date would be relevant.

4. Section C applied. The fixed-cost regime was intended to provide a comprehensive scheme. Treating a settlement on the trial date, before commencement of the hearing, as attracting no trial advocacy fee would create an unintended lacuna. A purposive construction avoided that result.

5. The fee was not confined to advocacy actually performed. It covered the preparation for and attendance at trial which would otherwise not be remunerated under the fixed-cost scheme. Denying the fee merely because settlement prevented advocacy from being performed would produce an artificial and potentially absurd result.

6. Nizami v Butt supported the general policy of a fixed-cost regime providing certain and readily calculated remuneration, while the court considered that the interests of justice also favoured not financially penalising settlement at the door of the court. Sitapuria v Moorzadi Khan, Amin and Hussain v Mullings and Royal Sun Alliance, and James v Ireland concerned superseded rules expressly referring to a claim concluding before trial commenced. They did not govern Table 6B and did not alter the conclusion.

• High Court (Queen’s Bench Division): Permission to appeal granted and appeal allowed from the decision of Mr Recorder Palmer QC sitting at Swindon County Court. The trial advocacy fee was held recoverable.