England and Wales High Court (Senior Courts Costs Office) Decisions

IN THE HIGH COURT OF JUSTICE
SUPREME COURT COSTS OFFICE

		Clifford's Inn, Fetter Lane London, EC4A 1DQ
		17th April 2007

Master Haworth :

Background

1. Briefly the facts of this case are that the claimant Mr Amarjeet Singh Dahele approached Field Fisher Waterhouse solicitors in February 2006. He had been diagnosed as suffering from mesothelioma and was referred to that firm by the specialist treating him at Bart's Hospital, London. The fee earner at Field Fisher Waterhouse, Ms Bains, saw the claimant on 3 March 2006. A CFA was signed by him on that date. The claimant made a statement to his solicitor in which he set out the substance of his allegations of exposure to asbestos.
2. Mr Dahele had worked for the defendant as a carpenter between 1975 and 1977. His job included fitting sheets to the outside of blocks of flats in Stratford, East London. It was his case that these sheets were made of asbestos although it is fair to say that there was an issue for some time between the parties as to whether the sheets contained asbestos at all.
3. In the light of Mr Dahele's medical condition the action proceeded swiftly, with a Letter of Claim being sent on 21st March 2006. Thereafter correspondence ensued with insurers. Voluntary disclosure of the claimant's witness statement took place on 19th May 2006. Frank Burton QC was instructed by the claimant on 23rd May 2006 and a CFA agreement was entered into between the claimant's solicitors and counsel on that date. Proceedings were issued on 1st June 2006 and a defence was served denying liability on 23 June 2006. On 29th June 2006 the defendant served a witness statement from Roger Goodland setting out a positive case why the claimant could not have been exposed to asbestos. On 4th July 2006 there was a Case Management Conference by telephone which directed that the claimant's evidence be taken on commission before a court-appointed examiner the following day at the claimant's home. On 5th July 2006 the claimant's evidence was taken on commission. He was cross-examined and re-examined. In the light of that examination on 6th July 2006 liability was admitted, albeit that quantum remained in dispute. On the 10^th June Judgment was entered for the claimant with damages to be assessed. The quantum trial was fixed for 7 September 2006. Quantum issues remained in dispute up to the date fixed for trial. On that date negotiations took place at court resulting in an agreement between claimant and defendant. The trial judge approved an Order in the terms drawn up by the parties which provided that there be judgment for the claimant in the sum of £400,000 net of CRU and that the defendant pay to CRU the sum of £3,900.50. The defendant was ordered to pay the claimant's costs to be assessed on the standard basis.
4. The claimant submitted a bill for assessment totalling £144,364.80. Within that bill both counsel and solicitors claimed a success fee of 100 per cent.
5. Points of dispute were served on 9th January 2007 and in relation to the success fee the defendant identified the nature of the dispute as follows:

"Success Fee

The defendant submits that the 100 per cent success fee claimed is excessive as it exceeds the fixed success fees recoverable under the CPR. This claim is an asbestos related Employer's Liability Disease Claim to which the fixed recoverable success fees in CPR Part 45.23 apply. This type of claim is defined as a "Type A claim". A fixed success fee of 27.5 per cent applies to "Type A claims" where a claim concludes before a trial has commenced (CPR 44.24(2)(a)(ii)). The present case settled at court immediately prior to the commencement of the final hearing dealing with quantum. No trial took place, and it is therefore submitted that the fixed success fee applies and the defendant offers no more than 27.5 per cent in respect of the same.

Counsel's Success Fee

The defendant submits that counsel's success fees are fixed under CPR Part 45.25 Table 7 which provides that in a "type A claim" allocated to the multi-track, counsel's success fees are fixed at 75 per cent if the claim concludes 21 days or less before the date fixed for commencement of the trial. The defendant therefore offers no more than 75 per cent in respect of counsel's success fee."

6. Points of Reply were served by the claimant on 29th January 2007 and in relation to the success fee the reply was as follows:

"Success fee

The claimant applies for a fixed percentage increase in this Employer's Liability Disease Claim pursuant to CPR Rule 45.23. The claimant's evidence was taken on commission at his home, during his lifetime, where he was subject to examination and cross examination. The defendant offered terms of settlement at the doors of the court on the morning of the trial and the matter was mentioned to the learned trial judge. The claimant will invite the learned costs judge to allow an increase in respect of the fixed prescribed success fee having regard to all the circumstances.

Counsel's Success Fee

We reiterate the previous response"

7. Determination of the appropriate success fee in Employer's Liability Disease Cases is subject to the provisions of CPR Part 45 Section V. So much is common ground. The defendant offered no more than 27.5 per cent for the solicitors' success fee in this claim and 75 per cent for counsel.

The Issues

8. The issues to be determined are:

(1) whether the taking of the claimant's evidence on commission on 5 July 2006 constituted the start of a "trial" for the purposes of Part 45;

(2) if not, whether the final settlement on the day of the quantum hearing was a conclusion "at trial" for the purposes of Part 45;

(3) if not, what success fee should be allowed pursuant to Rule 45.26 CPR in respect of both solicitors' and counsel's fees.

In view of my preliminary conclusions given ex tempore to the parties on the day of this hearing the third issue was not argued by either party.

The Law

9. The relevant provisions of the Civil Procedure Rules to which I was referred are:

"45.15(6):

In this section-

(a)…………..

(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 concluded at trial is a reference to a claim concluding by settlement after the trial has commenced or by judgment; and

(d) "trial period" means a period of time fixed by the court within which the trial is to take place and where the court fixes more than one such period in relation to a claim it means the most recent period to be fixed.

45.17

(2) Where a trial period has been fixed, if –

(a) the claim concludes before the first day of that period; and

(b) no trial date has been fixed within that period before the claim concludes

the first day of that period is treated as the date fixed for the commencement of the trial for the purposes of paragraph (1).

(3) Where a trial period has been fixed, if –

(a) the claim concludes before the first day of that period; but

(b) before the claim concludes, a trial date has been fixed within that period,

the trial date is the date fixed for the commencement of the trial for the purposes of paragraph (1)

(4) Where a trial period has been fixed and the claim concludes –

(a) on or after the first day of the period; but

(b) before the commencement of the trial.

The percentage increase in paragraph (1)(b)(i) or (1)(c)(i) should apply as appropriate whether or not a trial date has been fixed within that period.

(5) For the purpose of this Rule in calculating the periods of time, the day fixed for the commencement of the trial (or the first day of the trial period, where appropriate) is not included.

45.23

(1) Subject to paragraph (2) this section applies where –

(a) the dispute is between an employee (or, if the employee is deceased the employee's estate or dependants) and his employer (or a person alleged to be liable for the employer's alleged breach of statutory or common law duties of care); and

(b) the dispute relates to a disease with which the employee is diagnosed that is alleged to have been contracted as a consequence of the employer's alleged breach of statutory or common law duties of care in the course of the employee's employment; and

(c) the claimant has entered into a funding arrangement of a type specified in Rule 43.2(1)(k)(i).

(2)……………

(3) (c) Type "A" claim means a claim relating to a disease or physical injury alleged to have been caused by exposure to asbestos.

45.24

(1) In the cases to which this section applies subject to Rule 45.26 the percentage increase which is to be allowed in relation to solicitors' fees is

(a) 100 per cent if the claim concludes at trial; or

(b) where

(i) the claim concludes before a trial has commenced; or

(ii) the dispute is settled before a claim is issued;

to be determined by Rule 45.24(2):

(2) Where Rule 45.24(1)(b) applies, the percentage increase which is to be allowed in relation to solicitors' fees is –

(a) In type A claims –

(i)………….

(ii) 27.5 per cent in any other case.

45.25

In cases to which this section applies subject to Rule 45.26 the percentage increase which is to be allowed in relation to counsel's fees is:

(a) 100 per cent if the claim concludes at trial; or

(b) where –

(i) the claim concludes before a trial has commenced; or

(ii) the dispute is settled before a claim is issued

to be determined by Rule 45.25(2):

(2) Where Rule 45.25(1)(b) applies, the percentage increase which is to be allowed in relation to counsel's fees is –

(b) if the claim has been allocated to the multi-track, the amount shown in Table 7.

(3) Where a trial period has been fixed, Rules 45.17(2) to 45.17(5) apply for the purposes of determining the date fixed for the commencement of the trial.

Table 7

Claims allocated to the multi-track

	If the claim concludes 21 days or less before the date fixed for commencement of the trial	If the claim concludes more than 21 days before the date fixed for commencement of the trial or before any such date has been fixed
Type A Claim	75%	27.5%
Type B Claim	100%	100%
Type C Claim	75%	62.5%

10. In relation to evidence given by deposition I was referred to the following Rules:

34.8 Evidence by Deposition:

(1) A party may apply for an order for a person to be examined before the hearing takes place.

(2) A person …

(3) An order under this Rule should be for a deponent to be examined on oath before

(a) a judge

(b) an examiner of the court, or

(c) such other person as the court appoints.

34.9 Conduct of examination

(1) Subject to any directions contained in the order for examination the examination must be conducted in the same way as if the witness were giving evidence at trial.

34.11 Use of deposition at hearing

(5) Where a deposition is given in evidence at trial, it shall be treated as if it were a witness statement for the purposes of Rule 32.13 (Availability of witness statements for inspection).

.

Submissions by the Claimant

11. In relation to the first issue of whether the taking of the claimant's evidence on commission on 5 July 2006 constituted the start of a "trial" for the purposes of Part 45, Mr Morgan QC, submitted that by Rule 45.26(4) if I found that the case had concluded after "the commencement of a trial" the court has no discretion to vary the prescribed success fees of 100 per cent. "Trial" was defined by Rule 45.15(6)(b) as "the final contested hearing or … the contested hearing of any issue ordered to be tried separately".
12. Mr Morgan submitted that the examination of the claimant which took place on 5 July was "a contested hearing of any issue ordered to be tried separately" for the following reasons:

(1) The evidence of the claimant was obviously something that would ordinarily form part of a trial.

(2) As part of case management the court has the power to direct for whole variety of reasons that a trial be broken up into parts, for example split trial of issues of liability and quantum.

(3) The direction for taking of the evidence of a witness at an early stage is simply part of the exercise of that same management power. What would ordinarily form part of a trial is directed to happen in stages, namely the claimant's evidence being taken first.

(4) The direction for taking evidence was contained in paragraph 3 of an order dated 4 July 2006, thus satisfying the provision in Rule 45.15(6)(b) for the contested hearing of any issue ordered to be tried separately.

(5) On any view of the transcript of the examination exhibited to the witness statement of Harminder Bains dated 2 February 2007 the evidence taken and the cross-examination performed by the defendant was clearly part of a "trial" in a natural sense of that word.

(6) I was provided with a note from Frank Burton QC, leading counsel for the claimant, who conducted the examination on 5 July 2006. From his note counsel was of the clear view that the examination was "the commencement of the trial or part of the trial".

13. Finally, Mr Morgan argued that the staged success fee provisions of Part 45 work on the basis that an opponent has a choice between settling a claim at an early stage and incurring a low success fee or testing the claimant's case in court and incurring a high success fee if his defence fails. There was in his view no more obvious test of a case than cross-examination of the claimant himself. In those circumstances it made policy sense that the defendant incurred the high success fee if he does not offer settlement until after testing the claimant's evidence.
14. In relation to the second issue, namely whether the final settlement on the day of the quantum hearing was a conclusion "at trial" for the purposes of Part 45, Mr Morgan QC submitted that there could be no doubt that at the quantum trial which was to take place on 7th September 2006 was both "the final contested hearing" and "the contested hearing of any issue ordered to be tried separately pursuant to Rule 45.15(6)(b)". The case management order of the 10th July 2006 at paragraph 8 specifically so referred. It was argued that the case settled after the time fixed for the hearing to begin, namely at around 11.10 a.m. and that the provisions of Rule 45.24 and 45.25 in respect of both solicitors' and counsel's fee agreements provide for an entitlement to a 100 per cent success fee if the claim concludes at trial. It was argued that provision must mean the same thing in the case of both solicitors and counsel. Mr Morgan QC argued that the rules in relation to counsel's success fees include an intermediate stage not available to solicitors where the claim concludes 21 days or less before the date fixed for commencement of the trial [my emphasis] which is referred to in Table 7 in Rule 45.25.
15. Consequently a case which settles on the day of the final hearing is not a claim which concludes 21 days or any other number of days "before the date fixed for commencement of the trial". This case concluded on the day fixed for the commencement of the trial. Accordingly, if a trial does not commence for the purposes of the Rules until the case is called on and the reaching of agreement before that happens counts as conclusion of the claim, there would in the submission of Mr Morgan QC be a lacuna in the Rules. Counsel would get 75 per cent if the case settled up to the night before the hearing or 100 per cent if the judge tells the parties to go and settle as soon as the case has been called into court but no figure is prescribed if it settles in the few hours in between.
16. Accordingly, it was submitted that a case "concludes at trial" if it settles on the day fixed for the trial and Rule 45.25(1)(a) and, by the same token, Rule 45.24(1)(a) must be interpreted in that way. In support for this argument I was referred to Rule 45.17(5) for calculating periods of time, the day fixed for the commencement of trial is left out of account. I was afforded a number of practical examples of practical difficulties by Mr Morgan QC regarding settlement, the time it took place or what would count as the trial starting for the purposes of the Rules in order to attract a 100 per cent success fee.
17. As a final alternative, it was submitted on the part of the claimant that this case did not conclude until the court made an order approving settlement. The court remained seized of the matter and although the parties might have reached agreement between themselves the claim was still live and remained so until such time as the judge made the order approving the settlement reached voluntarily between the parties. In order for the case to be stopped it had to be called on and at that moment the hearing date fixed for that date began.

Submissions of the Defendant

18. In relation to the first issue, namely that the claimant's evidence on commission taken on 5 July 2006 constituted the start of "the trial" for the purposes of Part 45, Mr Gaskell for the defendant submitted that the examination of the claimant on commission was not a "final contested hearing or … contested hearing of any issue ordered to be tried separately". It was argued that whilst examination of the claimant exhibited some features that may usually be associated with a trial the examination did not constitute a trial for the following reasons:

(1) The examination merely constituted a method for the parties' to obtain evidence to be used at a contested hearing in the future if so required.

(2) No "issue" was being "tried" at the examination because

(a) no judge was present at the hearing, and

(b) no issue was decided at the hearing.

(3) There was no outcome to the hearing, the purpose merely to obtain evidence.

19. Mr Gaskell accepted that a split trial of issues of liability and quantum would be caught under the sub-rule and that either such hearing would constitute a "contested hearing on any issue ordered to be tried separately". However the analogy between a split trial and obtaining evidence on commission was flawed in that the mere obtaining of evidence on commission does not meet the requirements for a trial under CPR Part 45 in that "no separate issue is tried".
20. So far as the second issue, namely did the matter conclude at trial, was concerned, Mr Gaskell argued that this case did not conclude at trial. Trial is specifically defined as a "contested hearing" for the purposes of 45.15(6)(b). The events set out in the witness statement of Harminder Bains, the claimant's solicitor, dated 2 February 2007, particularly at paragraphs 21 and 22, did not constitute a contested hearing. All aspects of the claim were agreed between the parties when the courtroom was entered. Giving the natural meaning to the word "trial" it could not be stated that the matter concluded at trial. The case concluded by negotiation between the parties, admittedly on the day of the quantum hearing, and the sole purpose of entering the courtroom was to obtain the judge's approval to the agreement reached between the parties. Insofar as the suggested lacuna put forward by Mr Morgan QC for the claimant, Mr Gaskell argued that there was no evidence to support this claim. The obvious interpretation of the Rule for the purposes of avoiding uncertainty was that if a party enters the courtroom with issues to be contested and adjudicated upon a trial has been commenced and a success fee can be recovered at 100 per cent. If, on the other hand, matters are concluded by way of negotiation and the courtroom is then entered with all matters agreed, the matter has settled by way of negotiation but not by way of trial. From a policy point of view, Mr Gaskell submitted that to adopt the claimant's approach would have an adverse effect on the conduct of parties in this type of litigation in that all matters to which fixed success fees apply would be disputed. Parties with the benefit of a conditional fee agreement would refuse to make any final agreement until a case had been fully opened in order to obtain a 100 per cent success fee. Parties with the benefit of conditional fee agreements would be tempted to delay the settlement of matters until the morning of the trial in the hope of increasing the level of the success fee available to them.

Findings

21. In relation to the first issue I was not persuaded by Mr Morgan QC's submissions that the taking of evidence on commission was a "contested hearing of any issue ordered to be tried separately" pursuant to Rule 45.15(6)(b). In this regard I preferred the submissions of the defendant on the basis that Rule 38.9(1) refers to the fact that the examination "must be conducted in the same way as if the witness were giving evidence at a trial". There was no judge present at the hearing when the evidence was taken on commission. There was no issue decided at that hearing and there was no outcome to that hearing, save that the evidence and cross-examination of the claimant was recorded in full and that the evidence taken by the examiner on 5th July 2006 would, had the matter gone to a liability trial, stood as the claimant's evidence. In my judgment the analogy between a split trial where issues of liability and quantum are dealt with separately and obtaining evidence on commission is flawed. No determination was made at the taking of evidence on commission, albeit that the claimant was tested under cross-examination by the defendant. The fact that the defendant shortly after the taking of the claimant's evidence on commission admitted liability does not give rise to any findings or determination by the court as envisaged in the Rules.
22. In relation to the second issue, namely that the case concluded at the quantum trial, it is common ground that judgment on liability was given on 10th July 2006 for a sum to be assessed by the court. It is evident from paragraphs 18 to 20 of the witness statement of Harminder Bains dated 2nd February 2007 that quantum remained in dispute, with the court fixing the assessment of damages hearing for 7th September 2006, before The Honourable Mr Justice Walker. A trial bundle was prepared by the claimant's solicitors and leading counsel Frank Burton QC was instructed on the claimant's behalf. On 7th September 2006 the date fixed for the hearing the claimant's solicitor (Harminder Bains) attended at court together with the claimant's expert witnesses and the claimant's counsel. Negotiations took place at the behest of the defendant's barrister and after several hours of negotiation it was agreed the defendant pay the claimant the sum of £400,000 and in addition pay CRU at the sum of £3,950, together with the claimant's costs. Settlement was achieved at approximately 11.10 am and the parties attended before the judge to obtain his approval to the agreement reached between them.
23. In my judgment there can be no doubt that the quantum trial itself was either "the final contested hearing" or "the contested hearing of any issue to be ordered to be tried separately". The order made on 10 July 2006 at paragraph 8 is clear in that regard. Further, the quantum trial had been fixed and was due to take place on 7 September 2006, any agreement between the parties being reached after the trial was due to commence. Both Rule 45.24 and 45.25, which deal with solicitors' and counsel's conditional fee agreement and their entitlement to a 100 per cent success fee, contain the same provision allowing the 100 success fee "if the claim concludes at trial". I accept the submission made by Mr Morgan QC that in relation to counsel's success fees there is an intermediate stage, not available to solicitors, where "the claim concludes 21 days or less before the date fixed for the commencement of the trial". This is the reference referred to in Table 7 to Rule 45.25. I accept that a case which settles on the day of the final hearing cannot be a claim which concludes 21 or any other number of days "before the date fixed for the commencement of the trial". This case settled on the day of trial. Where settlement takes place on the day fixed for the commencement of the trial there is a lacuna in the Civil Procedure Rules. Counsel would get a 75 per cent success fee if the case settles up to midnight on the day before the date fixed for the hearing. Conversely, he would get 100 per cent if the judge at the commencement of the trial instructs the parties to go and settle the case as soon as it has been called into court. There would appear to be no figure prescribed by Table 7 in the period of time from one minute past midnight on the day of the trial to the time for commencement of that trial later that day.
24. In those circumstances I accept the submission of Mr Morgan QC that a case "concludes at trial" if it settles on the day fixed for trial and Rule 45.25(1)(a) and 45.24(1)(a) must be interpreted in that way.
25. Further support for this position can be found in Rule 45.17(5) where, for the purposes of calculating periods of time," the day fixed for the commencement of the trial (or the first day …) is not included."
26. In my judgment in this case the court remained seised of the matter until approval of the settlement reached between the parties was given by the judge hearing the case. Until that time the Judge (had he been so minded) may not have approved the settlement and sent the parties away to renegotiate. The claim itself remained live on the day of the trial. Agreement was not reached until after the time for commencement of the trial and in addressing the court with regard to the agreement reached by the parties the case had begun. In those circumstances I find that the claimant's solicitors and counsel are entitled to the percentage increases referred to in Rule 45.24(1)(a) and 45.25(1), the percentage increase to be allowed being 100 per cent to both solicitor and counsel.
27. I am fortified in my conclusions by the overriding objective which encourages the early settlement of cases. Likewise, Part 45 of the Rules is predicated on the basis that the successful party to litigation which is being run with the benefit of a conditional fee agreement is entitled to a modest success fee in the event that the claim settles early. Counsel operating under conditional fee agreement terms has the benefit of an increasing sliding scale of success fees depending on how soon before trial the matter settles. In my judgment these Rules are designed to encourage the early settlement of cases and not to leave matters until the door of the court when the trial date has been reached. The defendant in this case had the opportunity of negotiating an early settlement of this claim, thus reducing its exposure to a substantial success fee. It chose to wait until the day of trial before entering into meaningful negotiations with the claimant and in those circumstances has rendered itself liable to discharge the maximum success fee permitted by the Rules.
28. In the light of this judgment it has not been necessary for me to hear argument or to make a determination with regard to the third issue, namely what success fee should be allowed pursuant to Rule 45.26 in respect of both solicitors' and counsel's fees and I have made no findings in that regard.
29. On 6 February 2007, after hearing argument with regard to the success fee issue, I assessed the remainder of the claimant's bill of costs. I reserved the costs of assessment to follow from this reserved judgment. I therefore give permission to both parties to provide me with their written submissions concerning the costs of assessment within seven days of the date from this judgment.