James v Ireland

Mr James, the Defendant in a road traffic accident claim, appeals from 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 the Claimant was entitled to recover a success fee of 100% on base costs. I was told that the 100% uplift in costs results in a sum of about £320,000.

CPR 45 provides for a fixed percentage by which the amount of a legal representative’s fee can be increased in accordance with a Conditional Fee Agreement (‘CFA’) which provides for a success fee. Section III deals with road traffic accident claims. This appeal is concerned with the regime under which success fees payable under a CFA were recoverable from the paying party.

The hearing of the claim was listed for three days to start on 8 June 2011 before Mr Justice Griffith Williams. The trial of the issue of quantum was adjourned on the first day, 8 June 2011. The issue of liability was stood out on 9 June 2011. The Claim was settled before the next hearing. 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. Before me Mr Edwards, Counsel for the Claimant, sought to uphold the decision on the grounds relied upon by Master Campbell alternatively on the basis that the trial of liability commenced when both parties came into court at the start of proceedings on 8 June 2011 prior to the application to adjourn the hearing of the quantum issue.

“CPR 45.15 – (1) This Section sets out the percentage increase which is to be allowed in the cases to which this Section applies.

(Rule 43.2(1)(l) defines “percentage increase as the percentage by which the amount of a legal representative’s fee can be increased in accordance with a conditional fee agreement which provides a success fee.)

(2)

This Section applies where –

(a)

the dispute arises from a road traffic accident; and

(b)

the claimant has entered into a funding arrangement of a type specified in rule 43.2(k)(i)

(Rule 43.2(k)(i) defines a funding arrangement as including an agreement or collective conditional fee agreement which provides for a success fee.)

…

(6)

In this Section –

…

(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;

…

CPR 45.16 – Subject to rule 45.18, the percentage increase which is to be allowed in relation to solicitors’ fees is-

(a)

100% where the claim concludes at trial; or

(b)

12.5% where –

(i)

the claim concludes before a trial has commenced; or

…

CPR 45.17 – (1) Subject to rule 45.18, the percentage increase which is to be allowed in relation to counsel’s fees is –

(a)

100% where the claim concludes at trial;

…

(c)

if the claim has been allocated to the multi track –

(i)

75% if the claim concludes 21 days or less before the date fixed for the commencement of the trial;

The transcript of proceedings before Mr Justice Griffith Williams on 8 and 9 June 2011 was before the court as was his judgment on 8 June on the application to adjourn the issue of quantum. Extracts from the transcripts relevant to the hearings on those dates are set out. Numbers in square brackets are page numbers in the appeal bundle unless otherwise indicated.

Mr Wilson-Smith QC, for the Claimant, informed Mr Justice Griffith Williams

“My Lord, this is listed as a trial on issues of liability and quantum.

…

As your Lordship will have seen from the papers, the liability issue is restricted to contributory negligence.

The position has arisen whereby I am seeking adjournment of the trial on the issues of quantum.”

The application for an adjournment of the quantum issue was opposed by Mr Norris QC for the Defendant. Mr Justice Griffith Williams said that he could not sit beyond 1pm on the third day listed for the trial, Friday 10 June.

Judgment on the application to adjourn the issue of quantum was given after lunch on 8 June 2011. Mr Justice Griffith Williams granted the application to adjourn “limited as it is to the issue of quantum only” [113, paragraph 17]. The Judge then observed:

“It seems to me there is no reason why this case should not proceed on liability today.” [114]

Mr Norris QC said that they had liability witnesses waiting and that “it is probably time to crack on.” The court adjourned for fifteen minutes to 2.55pm.

When the court reassembled, by consent Counsel asked for an adjournment to 10.30 am on 9 June 2014 [106]. Mr Wilson-Smith QC told the Judge that he had been shown some information by way of disclosure that they would need to consider which would take time. Counsel also needed to take instructions from the Client. Mr Norris QC said that he had made late disclosure of an interview with a police officer, PC Delbridge, and they had a supplementary statement which Mr Wilson-Smith QC needed to consider. Mr Justice Griffith Williams asked how long the liability trial was likely to last. Mr Wilson-Smith QC replied that they thought there would be a day and a half’s evidence. The Judge commented that he would like counsel to tell him what to read before the next morning. Both counsel invited the Judge to read various witness statements, principally those by the experts.

When the court convened on 9 June 2014, Mr Wilson-Smith QC informed the Judge [117]

“…as a result of the documentation that was disclosed, it is clear that there was another independent witness to the accident

…

MR JUSTICE GRIFFITH WILLIAMS: And this independent witness, you say, says that he cut that corner?

MR WILSON-SMITH: He cut the corner.

MR JUSTICE GRIFFITH WILLIAMS: Yes,

MR WILSON-SMITH: Now, we have been able to locate the name and address and telephone numbers of the witness. We tried to contact him last night. We believe we will be able to contact him. His evidence is significant for a number of reasons. First of all, both experts have proceeded on the basis there were no independent witnesses.

MR JUSTICE GRIFFITH WILLIAMS: And there is an area of dispute between them as to what I will call the angle of collision?

MR WILSON-SMITH: Precisely, precisely. Dr Mills says that this is significant evidence because, depending on the angle – well, the angle will to some extent influence the trajectory, as your Lordship will anticipate.

MR JUSTICE GRIFFITH WILLIAMS: Obviously, and it could also, reading their reports, have bearing on the issue of whether or not the helmet could have been dislodged?

MR WILSON-SMITH: My Lord, it has a bearing on a whole range of issues, including the force of the impact, and where the injuries are. My Lord, this is a big claim. It is an important claim and I am simply in a position where I have got to have a statement from him. What I invite your Lordship to do – I am anxious not to lose the trial date. I do not know what your Lordship’s movements are or your availability?”

Mr Wilson-Smith QC asked the Judge to stand the case out until 2pm. Counsel said:

“Mr Small [the independent witness] regarded the driving as dangerous.”[121]

The Judge was taken to some of the documents. Mr Wilson-Smith QC then continued:[125]

“Bearing in mind the importance of it to this Defendant, and bearing in mind the conflict between [the experts] Dr Chinn and Dr Mills, I feel that it is necessary for me to see whether I can obtain a statement from Mr Small. We have reason to believe that we can. How quickly we can do it is something that we are making urgent enquiries into. May I just say this? I understand my learned friend does not oppose to your Lordship to stand this out until two o’clock so that we can make those enquires.”

Mr Norris QC referred to the possibility of supplementary witness statements from Mr Delbridge, the police officer, and Mrs Ireland. If there were to be supplementary evidence from the Claimant’s side, including from Mr Small, he would wish to see it [130]. As had Mr Wilson-Smith QC, Mr Norris QC asked for an adjournment to 2pm. The case was adjourned until 2pm.

When the court resumed sitting at 2pm, Mr Wilson-Smith QC said:

“My Lord, progress is being made, but it is going to result in me asking your Lordship to stand this case out. …. We hope to have a witness statement by the close of play today. That will need to be considered by us and by the experts. Your Lordship is only sitting until midday tomorrow and my expert is not available next week. Apart from our own professional diaries – it would play havoc with those, but I do not advance that as a reason. It is with regret that I have to invite your Lordship to stand this case out.”

Mr Norris QC indicated that there were other potential witnesses referred to in Mr James’ supplementary statement of whom they may want to make further enquiries [132]. Mr Norris QC could see the difficulties of time constraints. Mr Justice Griffith Williams said [133]:

“I hope the parties understand that it is with particular regret that I have to stand this case out. But I can understand how this has come about, and I hope they understand too because it must be very frustrating for them to come in and sit at the back of the court waiting for the case to start and nothing actually happens.”

Mr Wilson-Smith QC asked whether it was possible for Mr Justice Griffith Williams to reserve the case to himself. Counsel said the Judge had been involved in “a fair bit of reading” and in two applications,
“one in respect of costs and one in respect of quantum and now liability.” Mr Norris QC said that he would be content for Mr Justice Griffith Williams to reserve the case to himself since he had “read a lot of the case.” If he were to reserve the case to himself Mr Norris QC was content that the costs be reserved to the end. If not, Counsel asked that costs be dealt with.

Mr Justice Griffith Williams said that he would speak to listing and asked for a time estimate for the liability hearing. The Judge rose. When he returned to court he said that there would be no problem if he reserved the case to himself. Mr Justice Griffith Williams said [137]

“The only order it seems to me I can make is to stand the case out for the issue of liability to be tried on a date to be fixed in the second half of the Michaelmas term, with a time estimate of three days.”

The Judge continued:

“Just before I rise, can I clear the decks to this extent? Mr Norris, so far as the issue of contributory negligence is concerned, is it restricted solely to what I will call the “helmet” issue?

MR NORRIS: No it also includes –

MR JUSTICE GRIFFITH WILLIAMS: As pleaded

MR NORRIS: Sorry, as pleaded and indeed as described in the opening.

MR JUSTICE GRIFFITH WILLIAMS: Yes. So the opening is-

MR NORRIS: Our case.

MR JUSTICE GRIFFITH WILLIAMS: - is your case. That is very helpful.”

Master Campbell held:

“35.

In my judgment, the final contested hearing of the issue of liability began after the short adjournment on 8 June 2011. At that point, the quantum trial had been adjourned because the Claimant was not ready to proceed… as Mr Edwards points out, no similar application for an adjournment of the liability trial was made on 8 June.

…

36.

… in my view, 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 (to which he could have said ‘no’) and the request had been occasioned by the fact that the Defendant had given late disclosure of a disclosable document and had served a supplementary witness statement. In addition only an hour’s argument would have been possible that afternoon – ‘I cannot sit beyond 4.15pm’ (see page 24) the Judge had said. The ending of the day’s business at that point was for the convenience of the court and the parties, but in my judgment, it does not follow that accordingly, the trial had not begun… Here, Mr Wilson-Smith’s opening had effectively been advanced during the application for an adjournment of the quantum trial. He did not need to say it all again at the outset of the liability trial. There had then followed an exchange about the material which the parties wished the judge to read overnight. In my view, these are persuasive factors in favour of the trial having started rather than not. For these reasons, I am satisfied that the determination of this issue on legal grounds must be resolved in favour of the Claimant.

37.

I take the same view so far as the facts are concerned. First, I consider there is nothing in the point that the Judge reserved the case to himself. The fact that subsequently, a different Judge might have undertaken the liability trial would not have meant that the exchanges before Mr Justice Griffith Williams would not have been ‘at trial’… Second, I consider Mr Arney is reading too much into the words used by both the Judge and Counsel.

… in so far as Mr Arney contends that the language of the transcript points to the fact that the trial had not begun, I disagree with him.”

At paragraph 38 of his judgment Master Campbell concluded:

“… the Claimant’s claim for success fees falls within CPR 45.16(1)(a) and 47.17(1)(a) because in my judgment the final contested hearing commenced on 8 June 2011 when the liability trial was opened, albeit that the Judge rose very shortly afterwards.”

“That being so, since the claim settled after the trial had commenced but before judgment, CPR 45.16(1)(b) and CPR 45.17(1)(c)(i) are not engaged. The success fees are therefore allowed at 100%.”

Mr Arney for the Defendant / Appellant helpfully summarised his submissions in the conclusions section at paragraph 12 of his skeleton argument. Counsel submitted:

“By reference both to the established legal principles and the particular facts of the case, the trial did not commence on 8 or 9 June 2011, such that the Respondent is restricted to the lower level of success fees :-

(a)

By reference to the decisions in Gandy [Gandy v King [2010] EWHC 90177 (Costs)] and Amin [Amin v Mullings [2011] EWHC 278 (QB)], where the hearing essentially consisted of nothing more than consideration of whether to adjourn the trial to another time or date, this did not constitute the commencement of the “core event” contested hearing of the substantive issues.

(b)

The transcript of the exchanges between Counsel and the Judge only serve to strengthen that principled starting position. It is clear from the transcript that neither the Judge nor the advocates considered the trial to have started.

(c)

Even if rightly decided on its particular facts, (which is not accepted), the Loizou decision [Loizou v Gordon & Patsias [2012] EWHC 90221 (Costs)]is rightly distinguished: -

(i)

Significance was attached to the fact that the 1^st Defendant was not going to attend, which was used to distinguish the facts from the Gandy case (see para 45 of the judgment).

(ii)

The application to adjourn was refused, such that the hearing remained as the (only) trial of the matter. By contrast, in our case successive adjournment requests were granted, and the trial was ultimately rescheduled to take place on another day (9 months later).

(d)

The grant of successive adjournments is decisive. In Loizou the adjournment request was refused such that the claim concluded (by settlement) after the commencement of “the trial”. In both Gandy and in our case the trial was adjourned (in Gandy to 2pm that day; and in our case ultimately to another day months later). The claim was then settled before the case came back for “trial.” To find for the Respondent in our case, the court would have to conclude that: -

(i)

There were to be two “trials”, namely “Trial 1” on 8/9 June 2011 and “Trial 2” on the rescheduled date. Such an interpretation finds no support in the CPR or the reported cases; or

(ii)

There was to be a part-heard trial, commencing on 8 June 2011 and concluding on the rescheduled date. This was not the basis on which the case was adjourned (or subsequently case managed).

(e)

It follows that the June 2011 hearing was ultimately of no more than procedural significance (like the approval hearing in Gandy and which was required in the instant case also), which is insufficient to trigger the entitlement to the higher success fee. It was not the “core event” required.”

Mr Arney submitted that Master Campbell correctly held that the application to adjourn the quantum issue did not amount to the commencement of the trial within the meaning of CPR 45.15(6)(b) and (c). What occurred after the decision of Mr Justice Griffith Williams to adjourn the quantum issue to be dealt with at a subsequent hearing was materially indistinguishable from what happened in relation to the liability issue. After judgment on the adjournment of the quantum issue, as a result of additional disclosure by the Defendant, the liability hearing was adjourned by consent to 10.30am on 9 June 2011. As a result of the late disclosure the Claimant’s legal representatives wished to take a statement from the independent witness referred to in the statement the Defendant had recently disclosed.

At the start of proceedings on 9 June 2011 Mr Wilson-Smith QC asked the Judge to stand the case out until 2pm in the hope that a statement from the independent witness could be obtained. The request was granted. In the event, the case was not ready to proceed on 9 June 2011 and was taken out of the list. Mr Arney contended that all that happened on 8 and 9 June 2011 after the judgment on the adjournment of the quantum issue and discussion on costs was that there were successive applications to adjourn the liability proceedings which were granted. Just as with the quantum issue, the trial of the liability issue had not commenced.

Mr Arney submitted that Master Campbell erred in failing to consider whether what happened in respect of the liability issue on 8 and 9 June 2011 was a ‘core event’ at which matters would be finally determined as referred to by Mr Justice Blair in Cutler v Stephenson and Manchester City Council [2008] EWHC 3622 (QB) at paragraph 8, cited by Master Haworth in Gandy. It was submitted that what occurred on 8 and 9 June 2011 was not a ‘core event’. What happened on 8 and 9 June 2011 was analogous to what occurred in Gandy to which Master Campbell should have referred. In Gandy Master Haworth held at paragraph 28:

“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, namely 3 November 2008. However, it is clear from the transcript of the exchange between Mr Martin (Counsel for the Claimant) and Mr Justice Blake, that the trial did not start. Mr Martin was not ready to start and sought an adjournment until 2.00pm on the day fixed for trial. At that time Mr Martin, in an exchange with Mr Justice Blake, told the Court that the parties had compromised the claim.”

Master Haworth held that the trial did not commence on the day Counsel for the parties appeared before Mr Justice Blake.

Not only was it submitted by Mr Arney that Master Campbell erred in failing to apply the correct construction of the words ‘trial has commenced’ in CPR 45.16(6)(c) as discussed in Gandy but also reached an impermissible conclusion on the facts. The transcript of the proceedings before Mr Justice Griffith Williams on 8 and 9 June 2011 shows that the parties were at no point ready to proceed with the trial of liability. Mr Arney contended that the fact that the hearing occupied one and a half days is not material. What must be considered is the substance of what took place at the hearing not its duration.

Mr Arney submitted that the material question for Master Campbell was ‘did the liability hearing start’. It is immaterial that the Judge had read some of the papers and that some facts were outlined for the purpose of the application to adjourn the quantum issue. Mr Arney submitted that nothing other than procedural issues were dealt with at the hearing on 8 and 9 June 2011. Nothing was decided other than that the quantum issue was adjourned and that the parties were not ready to proceed with the liability hearing. There had been late disclosure of important material, the interview conducted by the police with the Defendant. This material named an independent witness who had to be traced and a statement taken from him. This could not be done in time for the trial of the issue of liability to start on 8 or 9 June 2011 before the case was stood out of the list.

Mr Arney submitted that Master Campbell rightly held in paragraph 35 that the trial had not started with the argument on and determination of the application to adjourn the quantum issue. However the Master erred in distinguishing the treatment of the adjournment of the quantum issue from standing the liability hearing out of the list before the hearing of the issue had started. In the language of Cutler referred to in Gandy, a ‘core event’ at which liability would be determined had not started. There is nothing in the transcript from which it is possible to discern when a hearing to determine liability had started. The hearing was occupied by discussion on the obtaining of further evidence and arrangement for a future liability hearing. It was submitted that Master Campbell erred in holding at paragraph 36 that submissions on when the court was to sit to hear the issue of liability marked the start of the liability trial. It was said that the Master erred at paragraph 36 and insofar as he may have suggested that Counsel did not need to open the liability trial as he had made submissions on the adjournment of the quantum issue.

Further, Mr Arney submitted that Master Campbell erred in holding in paragraph 37 that there was nothing in the point that the Judge reserved the case to himself. The reasons the Master gave for so deciding were all based on examples of unusual circumstances in which the judge who had started a trial could not continue which then had to be taken by another judge. It was submitted that in the ordinary course, the same judge who had started a trial would conduct the adjourned hearing. There would be no need to reserve it to himself or herself.

As for the alternative basis upon which the Defendant seeks to uphold the decision of the Master that the trial had commenced before settlement, Mr Arney submitted that the trial had not commenced within the meaning of CPR 45.15(6) when the parties were called into court on 8 June 2011 to commence the day’s business notwithstanding that the first matter to be dealt with was an application to adjourn the determination of the quantum issue. Such a construction would trigger a 100% uplift if the parties turn up to court and all that happens is that the case is adjourned. An application for an adjournment is not the final contested hearing or the contested hearing of any issue ordered to be tried separately within the meaning of CPR 45.15(6)(b).

Accordingly it was submitted that the appeal be allowed and a decision that the claim concluded by a settlement before the trial commenced substituted.

Mr Edwards for the Claimant submitted that Master Campbell adopted the correct approach to whether the trial had commenced within the meaning of CPR 45.15(6). The Master considered what happened at the hearing. This was a question of fact for the Master. He set out his reasons in paragraph 36 of his judgment for holding that the trial had commenced before settlement was reached. Once Mr Justice Griffith Williams had given his ruling on the application for an adjournment of the quantum issue the Judge was expecting the trial to proceed on liability on 8 June 2011. The Judge said that there was no reason why the case should not proceed on the liability issue on that day. The parties appear not to have known what was coming in relation to the evidence that was to be disclosed later.

Mr Edwards submitted that it is clear from paragraph 36 of his judgment that Master Campbell considered that the trial of the liability issue had started before a further opening and hearing evidence. He was right to say that an opening was not needed. Mr Edwards said that it was never in contemplation that there would be a further opening and no suggestion from the Judge that he would want one.

Reliance was placed by counsel for the Claimant on the judgment of Master Leonard in Loizou. The First Defendant and his witness did not attend the hearing in that case, the Claimant’s counsel opened the case albeit briefly. The trial judge refused counsel for the First Defendant’s application to adjourn to another date. After a short adjournment, liability was conceded on behalf of the First Defendant. Master Leonard held of CPR 45.15(6)(b) and (c) and CPR 45.16

“ 43. The above provisions, read together as they must be, refer to the commencement of the substantive hearing of an issue or issues that, not having settled, are still contested. They do not refer to the stage that the hearing has reached.

44.

By definition a contested hearing must 'commence' before evidence is heard or submissions made. It does not become a contested hearing only when that happens.”

Master Leonard distinguished the case before him on the basis that

“there was no question, as in Gandy, of asking the Learned Recorder to put back the opening of the trial for a short period. The only options for the First Defendant's representatives were to proceed in his absence by putting the other parties to proof, or to make an application to the trial judge for adjournment to another date. Either way they had to wait for the contested hearing to commence. There was (by that point) no other context in which the First Defendant's Counsel could make her application. The Learned Recorder's reference to making a start, after the short adjournment granted for Counsel to take instructions, must be read in its true context as a reference to getting under way with evidence and submissions.”

Mr Edwards submitted that the abandonment of a trial does not mean that it has not started. A trial can start if later it has to be adjourned as happened in this case.

If Master Campbell were in error in holding that the trial started after the determination of the adjournment of the quantum issue, Mr Edwards submitted that his decision should be sustained on the basis that the trial commenced when the parties were first called into court on the morning of the hearing on 8 June 2011 rather than at the conclusion of the judgment on the application to adjourn the quantum issue. Mr Edwards contended that there is a point in asking what would have happened if the adjournment application or requests to put the matter back had been refused – everyone understood that the trial or hearing would proceed. This is what makes this case different from a purely procedural application somehow divorced from the hearing that everybody is there to participate in. Although Mr Edwards indicated in his skeleton argument that the belief of the parties was material, at the hearing of the appeal both Counsel agreed that the fact of whether a trial has started is not one of intention. The parties may intend to start the trial but the question under CPR 45.15(6)(b) and (c) and CPR 45.16 is whether the trial has in fact started. There must be certainty.

CPR 45.16(1)(a) and 45.17(1)(a) provide that a 100% uplift in solicitors’ and counsel’s fees are allowed where a CFA has been entered into where the claim concludes at trial. The determination of this appeal turns on whether Master Campbell erred in his interpretation of the meaning of a claim concluding at trial or whether, in deciding that it had, he reached a perverse conclusion on the facts.

Mr Justice Griffith Williams granted the application on behalf of the Claimant for the quantum issue to be tried separately and adjourned until after the determination of liability. In my judgment Master Campbell was correct in holding that at that stage the trial had not commenced. The alternative submission by Mr Edwards that if Master Campbell erred in the basis for his decision, that the trial of the liability issue had commenced after the judgment on adjournment of the quantum issue, the trial of the liability issue had commenced when the case was called on and the application for an adjournment of the quantum issue was made cannot be accepted. 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. On 8 June 2011 a hearing took place but it was not the final contested hearing or the hearing of an issue ordered to be tried separately. The hearing was of an application to adjourn the trial of the issue of quantum. Accordingly the Master did not err in holding that the trial of the issue of liability had not started with the application for an adjournment of issue of quantum.

In my judgment it cannot be said that Master Campbell erred in law by failing to refer to the judgment of Master Haworth in Gandy. In Gandy, Master Haworth was considering the wording of a CFA not CPR 45.15(6)(b). Master Haworth distinguished Sitapuria v Khan 10 December 2007 and Dahele v Thomas Bates and Son Ltd. [2007] EWHC 90072 (costs) from the case before him on the basis that those cases relate to the question of what constitutes a ‘trial’ for the purposes of Part 45 CPR, the fixed costs regime. Master Haworth stated at paragraph 31:

“I distinguish both those cases from the present case on the basis that the fixed costs regime in Part 45 does not apply to the facts of this case.”

However, whilst not construing the same provision, decisions on the same wording in a similar context are of assistance.

Loizou, relied upon by Mr Edwards for the Defendant, was a case decided under CPR 45. In Loizou the First Defendants did not attend. Counsel for the Claimant started the opening of the trial by briefly introducing the parties’ representatives before giving way to counsel for the First Defendant’s application for an adjournment. The application was refused. After a short adjournment, counsel for the First Defendant consented to judgment being entered against him on liability only. Master Leonard held at paragraph 45 that the only options for the First Defendant’s representatives:

“were to proceed in his absence by putting the other parties to proof, or to make an application to the trial judge for adjournment to another date. Either way they had to wait for the contested hearing to commence.”

Master Leonard held that:

“In those circumstances there was no question, as in Gandy, of asking the Learned Recorder to put back the opening of the trial for a short period.”

In Gandy Master Haworth held that it was clear from the transcript that counsel for the Claimant was not ready to start and sought an adjournment until 2pm on the day fixed for trial. When counsel returned to court at 2pm the Judge was informed that the parties had compromised the claim. Master Haworth held at paragraph 28 that the trial did not commence on that day.

Although each case turns on its own facts and the application to those facts of CPR 45.15(6)(b), those of the appeal before me bear striking similarities with those in Gandy.

Whilst, as in Gandy, the Judge had read some of the papers and witnesses were present, the Claimant’s counsel was not ready to proceed. The hearing was put back by consent, first to 10.30am on 9 June and then to 2pm. It was then stood out of the list.

In my judgment what occurred after Mr Justice Griffith Williams had delivered his judgment on the adjournment of the remedy issue was that the trial of the liability issue was put back in circumstances in which the Claimant’s representatives had to have the opportunity to consider a late disclosed statement by the Defendant to a police officer. When it became apparent from the statement that there was an independent witness to the accident, time was given to ascertain whether and when a statement from him could be obtained. When the hearing resumed on the morning of 9 June both counsel asked for an adjournment until 2pm in the light of the possibility of further witness statements from Mr Delbridge and Mrs Ireland and a statement from Mr Small being obtained. When the court resumed at 2pm, a statement from Mr Small had not yet been obtained. Counsel hoped it would be available by the end of the day but it would have to be considered by the legal representatives and the experts. Mr Wilson-Smith QC asked the judge to stand the case out. The court was only going to sit until midday the next day. Mr Norris QC acknowledged that time constraints caused difficulties. In my judgment these steps cannot be said to constitute the commencement of the trial of the liability issue. The fact that the case had been called on, counsel had come into court and the Judge had listened to submissions on whether he should rise until the next morning do not in my judgment support a conclusion that the trial on the liability issue had started in the afternoon of 8 June.

The question then arises as to whether the trial had started at 10.30am on 8 June, the alternative basis on which the Defendant seeks to uphold the decision of Master Campbell. Master Campbell held that Mr Wilson-Smith QC’s opening of the liability issue had effectively been advanced during the application for an adjournment of the trial of the remedy issue. At the beginning of the hearing on the first day, 8 June 2011, Mr Wilson-Smith QC told Mr Justice Griffith Williams that the liability issue was restricted to contributory negligence. However it is clear from the exchanges between the Judge and Mr Norris QC when the case was stood out of the list at the end of the second day, 9 June 2011, that the Judge did not know the scope of the contributory negligence defence which was the main issue in the liability trial. From the transcript of proceedings it is apparent that counsel for the Claimant had not opened the case on the liability issues when applying for an adjournment of the quantum hearing. Submissions were made on evidence about the care regime which would be needed for the Claimant. Discussions about the Claimant’s helmet which may have been relevant to the liability hearing did not take place until after the judgment had been given to adjourn the trial of the quantum issue. In my judgment the transcript of proceedings does not support a conclusion that the liability trial had effectively been opened by Mr Wilson-Smith QC’s submission in applying for an adjournment of the trial of the quantum issue.

Nor, in my judgment, did Mr Justice Griffith Williams’ asking what he should read overnight indicate that the liability trial had started. No doubt counsel and Judge wanted to make the best use of time in the hope that it may have been possible to start the liability trial the next day. This proved not to have been possible. The reading of papers does not indicate that the liability trial had started.

Further, there is considerable force in Mr Arney’s submission that the fact that Mr Justice Griffith Williams was asked to and did reserve the liability trial to himself is a strong indication that the liability trial had not commenced. There would have been no need to reserve the case to himself if the Judge had already started hearing the liability trial. He would have conducted an adjourned hearing. No order reserving the case to himself would have been necessary or appropriate. Further, if the liability trial had commenced it would have been adjourned. The liability trial was not adjourned, it was stood out of the list because the liability trial had not commenced.

The 100% percentage increase is payable when a settlement is reached after the commencement of the final contested hearing, or in this case, contested hearing of the liability issue. It is not triggered by the commencement of any hearing of whatever nature related to the contested liability hearing. In this case there may be hearings before the start of the contested hearing of the liability issue to deal with evidence and other case management matters. Whilst the hearing before Mr Justice Griffith Williams which started after his judgment on the adjournment of the quantum issue was related to the trial of the liability issue, it was to put back the start of the hearing of that issue and then to take it out of the list. The hearing which took place from the afternoon of 8 June and on 9 June 2011 was not the contested hearing of the liability issue within the meaning of CPR 45.15(6)(b). The sequential proposals to put the case back, first to 10.30am on 9 June 2011 and then to 2pm on that day were analogous to the facts considered in Gandy. Whilst such requests can be made after a trial has started, that was not so in this case. In my judgment Master Campbell erred in treating the start of a hearing related to the liability issue concerned with when the trial would start as the start of the contested hearing of that issue.

The appeal is allowed. In my judgment 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 is 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 is dismissed. Counsel are invited to calculate the consequential increase in fees.

I am grateful for the assistance given by the practical experience of the Assessor, Master Haworth but this judgment is mine alone.