A sensible approach on trial costs
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We seem to be going through a time of significant change in the personal injury arena, with many changes not favouring the Claimant, for example the rise in Court fees and the proposal to scrap general damages for whiplash injuries. Therefore, I was recently pleased to see that common sense prevailed in the appealed case of Mendes v Hochtief (UK) Construction  EWHC 976 (QB).
A road traffic claim was denied by the Defendant and was listed for a one day trial, with the parties attending with Counsel. At Court, the parties entered into settlement negotiations. Two requests were granted for more time for settlement discussions by the trial judge and the claim was then settled at the door of the Court without the need for a trial. As there was no 'final hearing' of the claim, the trial judge refused the advocacy fee despite Counsel attending on the day.
The issue to be decided by Coulson J on appeal was whether the fixed trial advocacy fee was recoverable from the Defendant in these circumstances. The Judge held that the fee was recoverable, as the claim had not settled before the date of the trial, even if the trial itself did not go ahead on the day. He rejected the argument that the Claimant's advocate had a "windfall" in recovering the trial advocacy fee despite not actually appearing at trial.
This was, to my mind, a very sensible approach as on any other interpretation it would require the parties to commence the trial and then seek to adjourn for settlement negotiations, or to proceed with the trial despite a willingness of the parties to negotiate on the day, which would only serve to waste the Court's time.
Whilst it would of course have been preferable to settle the matter in advance of the trial date, the case provides an incentive for the parties to enter into negotiations at the door of the Court in the knowledge that the successful party's advocate will be paid by the opposing party.
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