Definition of a Contested Trial

The Claimant was involved in a Road Traffic Accident. The Second Defendant was driving the Claimant’s vehicle when it collided with the First Defendant’s vehicle. Liability for the accident was disputed between the First and Second Defendant.

Directions were given for allocation of a consolidated action to the Fast Track and for split Trial of liability and quantum. The liability only Trial was listed for 21st July 2011.

At the Trial Counsel for the First Defendant attended however, the First Defendant and his witness did not. The Judge refused Counsel’s application to adjourn the hearing to another date. Counsel for the First Defendant took instructions and liability was conceded. The claim against the Second Defendant was dismissed.

The Second Defendant’s solicitors were acting under a CFA. CPR 45.16 provides that where the claim concludes at Trial the Solicitors’ Success Fee is 100%. CPR 45.15 (6) states that (b) a reference to “trial” is a reference to the fin al contested hearing or to the contested hearing of any issue ordered to be tried separately and (c) a reference to a claim concluding at trial is a reference to a claim concluding by settlement after the trial has commenced or by judgment…”

The Second Defendant stated that they were entitled to recover a 100% Success Fee as the claim had concluded at Trial. The Second Defendant argued that there was no agreement of the issue of liability at any stage and that this was the issue to be dealt with at the Trial. The First Defendant’s application to adjourn was made in the context of the Trial having being called on and the claim had been opened.

The First Defendant argued that the Second Defendant’s Solicitors were limited to a 12.5% increase. The First Defendant submitted that it the issue was not whether the Trial had been called on and opened but whether there was a “contested hearing”. The First Defendant submitted that, as there had been no evidence put before the Court, the contest never engaged and, as such, only a 12/5% uplift was recoverable.

In considering which Success Fee should be applied, the following cases were considered:
Dahele v Thomas Bates & Son Ltd. [2007] EWHC 90072 (Costs) – It was decided that where a case settled on the day and after the time fixed for trial, the case could be considered to have concluded at Trial.

Sitapuria v Khan (Unreported, 10th December 2007) – An order settling the claim and costs was presented to the court and approved by the Circuit Judge prior to the case being opened.

Summary Assessment of costs was deferred to another date. The Circuit Judge rejected the submission that settlement on the day of, but before the opening of, the Trial would give rise to a 100% increase. The Circuit Judge concluded that, there was no contested hearing if the parties conclude a settlement prior to the case being called on as a contested hearing and the opening has commenced.

Thenga v Quinn [2009] EWCA Civ 151 – The hearing was originally listed to determine the quantum of damages in a Road Traffic Accident but, was instead used for the summary assessment of the Claimant’s costs. The Judge concluded that “the final contested hearing” relates to the substantive claim and, as such, the Claimant was limited to a 12.5% Success Fee.

Gandy v King [2010] EWHC 90177 (Costs) – The Trial was adjourned until 2pm on 3rd November. The Judge was then told that the claim had been compromised and the settlement order was approved on the 7th November. In this case it was considered that the word “Trial” denotes an examination and determination of issues between the partied by a Judge, or some other tribunal. It was concluded that an approval settlement did not meet the criteria of a Trial.

Amin & Anr. V Mullings & Anr [2011] EWHC 278 – Quantum of the Claimant’s claim had been agreed subject to liability. Liability was agreed at the door of the Court and the Trial proceeded only because quantum of the First Defendant’s counterclaim remained in dispute. The Judge referred to the provisions of CPR 45 and states that there is only a 100% Success Fee when the claim concludes after the commencement of the contested Trial.

Conclusions:

There was a clear distinction between this case and the cases of Gandy, Thenga, Dahele, Sitapuria, and Amin is that the Trial in this matter opened all issues including the issues of liability and damages.

In this case, Counsel for the Claimant properly opened, and properly gave way to the First Defendant’s application to adjourn.

It was concluded that the hearing on the 21st July was a contested hearing of liability. The Trial had commenced before the claim settled and, as such, the Second Defendant’s Solicitors were entitled to a 100% Success Fee.