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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bird v Acorn Group Ltd [2016] EWCA Civ 1096 (11 November 2016) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2016/1096.html Cite as: [2017] 1 WLR 1915, [2016] WLR(D) 594, [2016] EWCA Civ 1096, [2016] 6 Costs LO 959, [2017] CP Rep 8, [2017] PIQR P7 |
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CIVIL
DIVISION)
ON APPEAL FROM BIRKENHEAD COUNTY COURT
AND FAMILY COURT
District Judge Campbell
A89YJ009
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE UNDERHILL
and
LORD JUSTICE BRIGGS
with
MASTER GORDON SAKER (Senior Costs Judge) sitting as an Assessor
____________________
MR TERRANCE BIRD |
Appellant |
|
- and - |
||
ACORN GROUP LIMITED |
Respondent |
____________________
Mr Ben Williams QC and Mr Kevin Latham (instructed by Michael W Halsall Solicitors Limited) for the Respondent
Hearing date: 20 October 2016
____________________
Crown Copyright ©
Lord Justice Briggs :
"45.29E(1) Subject to paragraph (2), the amount of fixed costs is set out –
(a) in respect of employers' liability claims, in Table 6C; and
(b) in respect of public liability claims, in Table 6D.
(2) …
(3) …
(4) In Tables 6C and 6D –
(a) in Part B, "on or after" means the period beginning on the date on which the court respectively –
(i) issues the claim;
(ii) allocates the claim under Part 26; or
(iii) lists the claim for trial; and
(b) …
(c) a reference to "trial" is a reference to the final contested hearing."
I will refer to the three columns in part B as columns 1, 2 and 3 respectively. Part C is as follows:
Part D provides graded trial advocacy fees, so as to identify the fee payable under part C(c). They are graded in accordance with the amount of damages agreed or awarded, and range between £500 and £1,705.
"12.1 Scope
(1) In the following paragraphs –
(a) a 'relevant order' means a judgment or order of the court which requires the amount of money to be paid by one party to another to be decided by the court; and
(b) a 'disposal hearing' means a hearing in accordance with paragraph 12.4.
(2) A relevant order may have been obtained:
(a) by a judgment in default under Part 12;
(b) by a judgment on an admission under Part 14;
(c) on the striking out of a statement of case under Part 3;
(d) on a summary judgment application under Part 24;
(e) on the determination of a preliminary issue or on a trial as to liability; or
(f) at trial.
(3) A relevant order includes any order for the amount of a debt, damages or interest to be decided by the court (including an order for the taking of an account or the making of an inquiry as to any sum due, and any similar order), but does not include an order for the assessment of costs.
Directions
12.2 Directions
(1) When the court makes a relevant order it will give directions, which may include –
(a) listing the claim for a disposal hearing;
(b) allocating or re-allocating the claim (but see paragraph 12.3);
(c) …
(d) …
12.3 Allocation
(1) If, when the court makes a relevant order –
(a) the claim has not previously been allocated to a track; and
(b) the financial value of the claim (determined in accordance with Part 26) is such that the claim would, if defended be allocated to the small claims track,
the court will normally allocate it to that track.
(2) Where paragraph (1)(b) does not apply, the court will not normally allocate the claim to a track (other than the small claims track) unless –
(a) the amount payable appears to be genuinely disputed on substantial grounds; or
(b) the dispute is not suitable to be dealt with at a disposal hearing.
12.4 Disposal hearings
(1) A disposal hearing is a hearing –
(a) which will not normally last longer than 30 minutes, and
(b) at which the court will not normally hear oral evidence.
(2) At a disposal hearing the court may –
(a) decide the amount payable under or in consequence of the relevant order and give judgment for that amount; or
(b) give directions as to the future conduct of the proceedings.
(3) …
(4) Rule 32.6 applies to evidence at a disposal hearing unless the court directs otherwise.
(5) Except where the claim has been allocated to the small claims track, the court will not exercise its power under sub-paragraph (2)(a) unless any written evidence on which the claimant relies has been served on the defendant at least 3 days before the disposal hearing."
"TAKE NOTICE that the Hearing will take place on
1 September 2014 at 10:00 AM
At the County Court at Birkenhead, 76 Hamilton Street, Birkenhead, Merseyside, CH41 5EN
When you should attend
Please Note: This case may be released to another Judge, possibly at a different Court
The time allowed for this hearing is 10 minutes. This is a Disposal Hearing under paragraph 12.4 of the Practice Direction to Part 26 of theCivil
Procedure Rules 1988 (CPR). Your attention is drawn to that Direction and to Parts 32.6 and 32.7 of the rules in relation to evidence."
i) Applying the "final contested hearing" definition in Part 45.29E(4)(c), it could not be said at the date of listing for a disposal hearing whether the hearing would be either final or contested. Bearing in mind the 10 minute time allocation, the court might well use the hearing for the purpose of giving directions, pursuant to 26PD 12.4(2)(b). Where (as here) the listing followed a judgment in default of acknowledgement of service, the hearing might well be non-contested.
ii) If directions were given at the disposal hearing which included allocation of the quantification of damages to the fast track, pursuant to 26PD 12.2(1)(b), then if mere listing for disposal enabled the claimant to recover fixed costs under column 3, the allocation to the fast track would transfer him back to the less generous column 2, a counter-intuitive result if the three columns were meant to be sequential. The prospect of moving the case to a lower fixed costs band by obtaining allocation directions at the disposal hearing would be a disincentive to settlement by the defendant's insurers.
iii) This court's decision about a similar question in relation to first hearings of possession claims under CPR55 in Forcelux Limited v Binnie [2009] EWCA
Civ 854 and 1077 reinforced his analysis.
iv) Passages in Jackson LJ's Interim Report suggested that the three columns in Table 6D part B were intended to be sequential, so that the third column could not be reached unless there had previously been allocation. He suggested that it was too early in the proceedings for the most generous costs scale to be triggered. Finally, Part 45PD para 4 suggested an assumption in the minds of the Rule Committee that disposal hearings were not trials.
"I am supported in this view by Mr Latham's submission that much work is to be done in cases which are heading to a disposal hearing, including the gathering of witness evidence, the preparation and service of written evidence which is specifically required by Practice Direction 26. 12.4(5). Indeed, there are a large number of cases which settle just before the disposal hearing or on the morning of it and I can take judicial notice of that fact as a judge who regularly deals with disposal lists. It cannot be right that those cases attract the same amount of costs as a case that settles after issue but before any allocation by the court which, if I were to accept the defendant's submissions, all those cases which will be months down the line from the listing of the disposal will only attract the costs in column one."
This court is entitled to give weight to these observations from a judge with large experience in this particular field. Furthermore, the appellant gains nothing from the fact that this particular disposal hearing was listed for a 10 minute hearing. The County Court at Birkenhead deals with the quantification of damages in relatively small claims of this kind within ten or fifteen minutes on a regular basis, even if opposed, with counsel on both sides. The cases are routinely disposed of on the papers, without oral evidence, after full pre-reading by the judge, and with the benefit of the most succinct submissions, in every respect proportional to the modest amounts usually at stake.
Lord Justice Underhill:
Lady Justice Arden: