Trial and Error: James V Ireland  EWHC 1259 (QB)
Mr James, the Defendant in a road traffic accident claim, appealed the Judgment and Order of Master Campbell on 7 August 2014. Master Campbell held that for the purpose of CPR 45.16 and 45.17 the trial of the action had commenced and accordingly a 100% success fee applied. This was by no means an unsubstantial case and the success fee claimed was around the £320,000 mark. The appeal was successful and Mrs Justice Slade DBE overturned that decision, reducing the uplift to the fixed 12.5%.
The relevant CPR
The former CPR 45.15(6) provides inter alia that:
(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 silence of the practice direction supplementing the former CPR 45 in relation to CPR 45.15(6) suggests that no further clarification was required. This was not the case.
The issue in James v Ireland was whether the trial had “commenced” for the purpose of CPR 45.15.
It was Master Campbell’s view that the hearing had started because-
‘…the case had been called on, Counsel had come into court, the Judge had sat listening to submissions about whether he should rise until the morning… Mr Wilson-Smith's opening had effectively been advanced during the application for an adjournment of the quantum trial…’
The question before the Master was whether the trial of the issue of liability had commenced before it was stood out on 9 June 2011. The Master held that the liability trial started on 8 June 2011 after the application to adjourn the issue of quantum was determined.
The Honourable Mrs Justice Slade DBE found that the following actions did not constitute the trial “commencing” for the purpose of CPR 45.15(6)(c):
- The final contested hearing or the hearing of an issue ordered to be tried separately does not commence just because the case is called on and counsel have come into court.
- Whilst a hearing may commence before counsel start making submissions, a ‘trial’ for the purposes of CPR 45.15(6)(b) only starts with the commencement of a final contested hearing or of an issue ordered to be tried separately.
- The 100% percentage increase is payable when a settlement is reached after the commencement of the final contested hearing. It is not triggered by the commencement of any hearing of whatever nature related to the contested liability hearing.
The appeal was subsequently allowed. In her judgment, and based on the material in the transcript of proceedings on 8 and 9 June 2011, and applying CPR 45.15(6)(b), the only conclusion which could be reached was that the trial of the liability issue had not commenced on 8 or 9 June 2011. Accordingly the claim for a 100% increase in solicitor’s and barrister’s fees was dismissed.