A claimant whose case settled on the day of trial is entitled to recover advocacy fees, the High Court has ruled.
In Mendes v Hochtief (UK) Construction Ltd, The Honourable Mr Justice Coulson (pictured) said a recorder had been wrong to say the claim had been settled before it was called on for trial hearing.
The personal injury case had settled for damages of £20,000 plus costs. The parties had attended for trial on 11 December, both represented by counsel, but indicated that a settlement might be possible if they were granted a little more time.
The recorder refused to award the fixed trial advocacy fee, saying the case was settled before the final contested hearing had commenced, and so no sum was recoverable.
Claimant firm Armstrongs Solicitors said Civil Procedure Rules specified costs for proceedings that ‘settle before trial’ and for those which are ‘disposed of at trial’. This particular claim fell into the latter category, the firm argued.
However defendant firm Taylor Rose TTKW said the definition of trial was ‘final contest hearing’, and it could not be said this claim had been disposed of at this stage.
Both counsel agreed there was no authority on this point to clarify what was recoverable.
Coulson said the claimants had been right to say costs did not come under the ‘settle before trial’ heading.
The argument that part of the trial was for ‘advocacy’ and therefore not recoverable was, said Coulson, rejected.
‘That seeks to make an artificial distinction between preparation of advocacy and attendance at trial, on the one hand, and actual performance of advocacy, on the other,’ said the judge.
‘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 also rejected the defendant’s argument that allowing trial costs would lead to counsel ‘skimming off’ the trial advocacy fee when it was not properly recoverable. Restricting advocacy fees until the trial itself had started would, suggested the defendant, have ‘had the virtue of certainty’.
Coulson replied: ‘I reject absolutely the suggestion of "skimming off". 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 appeal was granted and the trial advocacy fee made recoverable.