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High Court: no “windfall” in allowing barrister to claim fast-track trial advocacy fee


Coulson J: claim was ‘disposed of’ at trial

Allowing a claimant’s barrister to recover a trial advocacy fee in a fast-track personal injury case, settled on the morning of the hearing, “hardly amounts to a windfall”, a High Court judge has said.

Mr Justice Coulson said counsel in the case agreed that there was no authority on whether the fee could be claimed where a case settled on the day of a trial, but before it had actually started.

Coulson J accused counsel for the defendant of seeking to make an “artificial distinction” between preparation of advocacy and attendance at trial and “actual performance of advocacy”.

The judge went on: “And what if the trial goes ahead and the judge does not call on counsel or the solicitor-advocate for the claimant because the other side’s case is so poor?

“He or she would not perform any advocacy in such circumstances, so, if the defendant is right, he or she would not be entitled to be paid. That would be an absurd result.”

Coulson J said: “The fact that the trial advocacy fee is recoverable by the barrister or solicitor advocate for their preparation for, and attendance at trial, which would not otherwise be recoverable, hardly amounts to some sort of windfall.”

The court heard in Mendes v Hochtief (UK) Construction [2016] EWHC 976 (QB) [1], that Mr Mendes was injured in a traffic accident and a claim was started under the RTA protocol. The defendant denied liability, so the claim exited the portal.

The parties attended court for a one-day fast-track trial and were both represented by counsel. Coulson J said: “They twice indicated to the learned recorder who was to hear the trial that, if granted a little more time, they might well be able to settle the case. That is what happened.”

Mr Mendes accepted damages of £20,000 plus costs. In accordance with part IIIA of CPR part 45 – the fixed-costs regime that applies for cases that start under the protocol – Coulson J said Recorder Palmer QC awarded two elements of fixed costs – £2,655 and 20%.

However, Recorder Palmer refused to award the third element, the fixed trial advocacy fee, on the grounds that “the case was settled before the final contested hearing had commenced”. The claimant appealed.

Coulson J said that section C of the table of fixed costs where claims left the RTA protocol, set out in CPR 45.29C, applied to the case and it could be regarded as having been ‘disposed of at trial’.

He went on: “Counsel twice asked the learned recorder for more time which he granted and in consequence the settlement occurred. I do not believe that it strains the language of the rule to conclude that this was a case where the claim was ‘disposed of at trial’, albeit by way of settlement rather than judgment.”

Mr Justice Coulson allowed the claimant’s appeal. “It seems to me that, on first principles, the learned recorder was wrong to reach the conclusions he did. The trial advocacy fee is recoverable on the facts of this case.”