16 November, 2016
After being leapfrogged to the Court of Appeal, the Judgment in the matter of Bird v Acorn Group Ltd  EWCA Civ 1096 has been handed down. The Court was asked to determine what stage of fixed costs are applicable to personal injury cases when a matter has been listed for a disposal hearing and settles before that hearing, or at the hearing.
The Appellant sought an Order that when a matter is listed for disposal the Claimant should be limited to post-issue, pre-allocation costs. The Respondent argued that the appropriate stage was post-listing pre-trial costs.
Following lengthy submissions from both parties the Court of Appeal held that the appropriate costs payable are post-listing, pre-trial costs. This is a blow for Defendants and some might say a disincentive for parties to engage in negotiations after a matter is listed for disposal.
The Judgment is seemingly based upon the Judiciary's perception that matters listed for disposal settle very close to, or on the morning of the disposal hearing. In Forbes' experience this is not the case as a pro-active approach is usually taken to all cases, however it would appear that the Judiciary has taken the view that this is commonplace.
The Judgment deals only with cases which are listed for disposal and it will therefore remain a matter of debate whether the same principals apply to those cases where directions and a trial date are listed simultaneously. The Judgment makes it clear that the Court was intent in ensuring that the Claimant received proportionate recompense and where a party had undertaken work to prepare for a disposal hearing/trial, that they should receive appropriate costs.
Potentially there is still scope (albeit somewhat limited) for argument that in cases where directions and a trial date are listed simultaneously that the Claimant's costs should be limited to an earlier stage.
For more information please contact Nigel McCloy.