The idea of fixed trial costs for the advocate (usually counsel) was well established before the extension of the Fixed Recoverable Costs regime.
In the fast track, there were fixed amounts for “an advocate for preparing for and appearing at the trial”. Actual “appearance” was therefore required. Nothing would be recovered if the claim settled early.
For claims which had started in the RTA Protocol but did not continue in it, there were fixed “trial advocacy fees” with “trial” being defined as “the final contested hearing”. The wording of the rules might have been clearer, but to recover the trial advocacy fee Coulson J (in Mendes v Hochtief (UK) Construction Ltd [2016] EWHC 976 (QB)) found that it was sufficient for a case to settle at the door of the court on the day the matter was listed for trial. Settlement before the date of trial would not result in recovery of the trial advocacy fee.
The rules as they stood no doubt meant that there were many occasions where trial preparation would have been undertaken but no costs recovered in respect of the same where the matter settled pre-trial. This was perhaps not viewed as a serious issue as these would always have been matters listed for a trial with a length of no more than one day, with any preparation work being correspondingly low.
The new intermediate track is designed for cases where the trial may last up to 3 days. It would therefore be hoped that the new rules covering the Fixed Recoverable Costs for any trial would make adequate provision for trial preparation where a claim settled early given the trial preparation may be significant.
Unfortunately, those drafting the rules did not appear to give this any thought (or, at least, were given no authority to do otherwise). Table 12 (fast track) and Table 14 (intermediate track) simply give figures for “trial advocacy fees”. If the matter settles pre-trial, there is clearly no “advocacy” and nothing is recoverable.
Following representations to the MoJ from the Bar Council and the Personal Injuries Bar Association, and an MoJ consultation, this oversight will now be remedied. The latest Minutes of the Civil Procedure Rule Committee records:
“The recoverability of advocates’ preparation fees, in cases which (a) are settled late or (b) are vacated. In the fast track, 100% of the advocacy fee will be recoverable on the day of trial and the day before trial, and 75% will be recoverable up to two days before trial. In the new intermediate track, this will be extended to 100% on the day before trial, and 75% up to five days before trial. A suite of amendments to PD 45 and the Tables were AGREED as drafted.”
These changes will apparently be introduced in the April 2024 update. It is unclear as to whether these changes will be retrospective.
