Fixed Costs - Bird v Acorn Group (Court of Appeal)

Fixed costs where claim taken out of the EL/PL Protocol

The personal injury claim in this case originated in the Employers' Liability and Public Liability ("EL/PL") Protocol. When the defendant, through its insurers, failed to respond, the claimant's solicitors withdrew the claim from the portal. Liability was then admitted and proceedings issued regarding quantum. Default judgment was obtained and the case was transferred to a county court for assessment of damages. The case then settled but an issue arose as to fixed costs. It was held at first instance that the listing of a case for a disposal hearing following judgment was a listing for trial within the meaning of that phrase in Table 6D (and so the third column of Part B applied).  That meant that fixed costs were recoverable at a higher rate than would otherwise have been the case where there is a settlement between the date of listing and the date fixed for the disposal hearing. As Briggs LJ put it: "The difference is, in absolute terms, a modest one, but the cumulative effect of its application to numerous cases is substantial".

The Court of Appeal has now rejected the defendant's appeal from the first instance decision. In so doing, it rejected an argument that, if the third column is triggered when a disposal hearing is listed for trial, there will be no incentive for insurers to settle: "Settlement saves the insurer its own costs of preparing for a contested hearing, and both its own and the claimant's advocacy fees".