8 May 2015Print This Post

High Court refuses 100% success fee because trial had not started

money

Slade J : 100% uplift on fees not triggered by “the commencement of any hearing”

The High Court has refused to allow a personal injury claimant a 100% success fee on the grounds that a trial had not started before the case was settled, even though a hearing had begun.

Applying the uplift had resulted in costs of about £320,000.

Mrs Justice Slade said that, under the pre-Jackson CPR 45.16 and 45.17, claimants in conditional fee cases could only recover a 100% success fee where the claim “concludes at trial”.

Overturning a decision by Master Campbell, Slade J said: “The 100% percentage increase is payable when a settlement is reached after the commencement of the final contested hearing, or in this case, contested hearing of the liability issue.

“It is not triggered by the commencement of any hearing of whatever nature related to the contested liability hearing.”

She went on: “In my judgment Master Campbell erred in treating the start of a hearing related to the liability issue concerned with when the trial would start as the start of the contested hearing of that issue.”

The court heard in James v Ireland [2015] EWHC 1259 (QB) that the claim was listed for three days to start in June 2011, but the trial of the issue of quantum was adjourned on the first day. The issue of liability was stood out to the following day in the light of the late disclosure of some evidence. The judge asked counsel what he should read in the meantime.

On the second day, the difficulty of getting hold of a new witness identified from the disclosure meant that the judge had to stand the case out until later that term. The claim was settled before the next hearing.

Master Campbell ruled that the final contested hearing commenced when the liability trial was opened, albeit that the judge rose very shortly afterwards.

Slade J agreed with the Master did not err in holding that the trial of the issue of liability had not started with the application for an adjournment of issue of quantum. “The fact that the case had been called on, counsel had come into court and the hudge had listened to submissions on whether he should rise until the next morning do not in my judgment support a conclusion that the trial on the liability issue had started in the afternoon of 8 June.”

Further, the judge “asking what he should read overnight” did not indicate this either. “No doubt counsel and judge wanted to make the best use of time in the hope that it may have been possible to start the liability trial the next day. This proved not to have been possible.”

Slade J said the liability trial was not adjourned, it was “stood out of the list because the liability trial had not commenced”, which she said was fortified by the fact that the judge reserved the liability trial to himself.

“There would have been no need to reserve the case to himself if the judge had already started hearing the liability trial. He would have conducted an adjourned hearing. No order reserving the case to himself would have been necessary or appropriate.

“Further, if the liability trial had commenced it would have been adjourned. The liability trial was not adjourned, it was stood out of the list because the liability trial had not commenced.”

She allowed the defendant’s appeal and dismissed the claim for a 100% increase in the solicitor’s and barrister’s fees.

By Nick Hilborne

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