SCCO Reference CL1201221
SENIOR COURTS COSTS OFFICE
FROM BARNET COUNTY COURT
Thomas Moore Building
Royal Courts of Justice
B e f o r e :
| MR. GEORGE LOIZOU
|- and -
| (1) MR. NATHAN GORDON
(2) MR. YIANNI PATSIAS
Mr Ian Simpson (instructed by Pollard Bowers) for the Second Defendant
Hearing date: 2 July 2012
Crown Copyright ©
Master Leonard :
The Material Provisions of CPR 45
(a) 100% where the claim concludes at trial; or
(b) 12.5% where:
(i) the claim concludes before a trial has commenced; or
(ii) the dispute is settled before a claim is issued. '
'...(b) a reference to 'trial' is a reference to the final contested hearing or to the contested hearing of any issue ordered to be tried separately;
(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 definition section, under 45.15(6)(b) clearly refers to the words "contested hearing". Of course, if the trial commences - by which, in any normal sense of the word, it means that the case has been called on and has at least begun to be opened as a contested hearing - and the parties then settle the matter, then the trial has commenced and either that settlement which takes place after the case has been called on, and therefore has commenced, or judgment of the court in those circumstances entitles both solicitors and counsel to 100 percent. However, it seems to me that the trial has not commenced in the sense that there is no contested hearing which has commenced, if the parties conclude a settlement prior to the case being called on as a contested hearing and the opening has commenced of such a contested hearing.'
'I fear that, particularly where the differential increase is as wide as the rule-makers have provided in Rule 45.16, there is bound to be the most unfortunate jockeying for position in order to be on one or other side of the line which they have drawn. So, tempted as I am to ... rise above the words and look at mischief, I feel that in the end the court is required to see where the rule-makers have drawn this important line and ... to see whether there can be any real argument about it…My view is that it is plain beyond serious argument that, in drafting rule 45.15 (6)(b), the rule-makers have not thrown the conventional notion of a 'trial' to the winds and that the 'final contested hearing' relates to the substantive claim…'
'The first question to be determined is whether on the basis of the solicitors' CFA, this claim had concluded at trial. To my mind the word 'trial' denotes an examination and determination of issues between the parties by a Judge, or some other tribunal. I accept that the date fixed for a quantum trial had been reached…however it is clear from the transcript…that the trial did not start. Mr Martin was not ready to start and sought an adjournment until 2.00 pm on the day fixed for trial. At that time Mr Martin…told the court that the parties had compromised the claim. In my judgment, the trial did not commence on that day. On 7th November 2008, Mr Justice Blake approved the compromise agreement reached by the parties several days before ... An approval settlement in my judgment does not meet the criteria of a trial and in those circumstances I find that the … claim did not conclude at trial.'
'The language of 45.16(1) dealing with the percentage increase in solicitors' fees is clear. The entitlement to a 100% uplift arises when a claim concludes after the trial as defined, meaning the hearing, of the relevant claim has commenced by settlement or judgment. If settlement is achieved before the hearing has commenced, whether on or before the day fixed for the hearing, there is an entitlement to a 12.5% uplift.'
'In my judgment having regard to the provisions of CPR 20 and 45.15(6)(b) and (c), the meaning of CPR 45.16(1) is clear. There is a 100% uplift to solicitors' fees when the claim concludes after the commencement of the contested hearing of the claim. There is a 12.5% uplift where the claim concludes before a trial has commenced. It is immaterial whether the claim is concluded on the date fixed for trial but before it starts or on some earlier date. The only temporal provision in CPR 45.16(1)(a) and (b)(i) is by reference to the trial, not to the date fixed for trial. There is no difficulty or ambiguity in construing CPR 45.16. In my judgment the clear language of CPR 45.16 should not be given a different meaning ... '
The First Defendant's Submissions
The Second Defendant's Submissions