Fixed Costs: The Impact of Contributory Negligence on Trial Advocacy Fees

Mon, 18 May 2020

CPR 45.29C sets out the amount of fixed costs payable in Fast Track claims where a claim no longer continues under the RTA Protocol. Where a claim is disposed of at trial, costs of £2,655.00 are payable, alongside 20% of the damages agreed or awarded and the relevant trial advocacy fee. The protocol for EL/PL claims works in a similar way. It is trite that where the claim settles at Court on the day listed for trial, the advocacy fee is still payable[1].

Table 6B(D) of CPR 45.29C sets out the sliding scale which applies to trial advocacy fees dependent on the “damages agreed or awarded”.

Where settlement is negotiated by counsel at trial on the basis of the Claimant’s acceptance of a degree of contributory negligence or where contributory negligence is found by the trial judge, what are the “agreed or awarded” damages for the purpose of determining the trial advocacy fee? 

For example, if counsel negotiate settlement of the Claimant’s claim on a 50:50 basis and agree the quantum of the claim at £5,000 on a full liability basis so that the Claimant receives £2,500 net of contributory negligence, should the trial advocacy fee payable by the Defendant be £500 or £710?

Despite fixed costs being a well-established feature of Fast Track litigation, the CPR fails to prove any specific guidance on this issue.  There are no relevant notes in the White Book and reported case law on the subject is lacking.

Support for the recovery of the advocacy fee applicable to the damages agreed or awarded before any deduction for contributory negligence may be derived by analogy with the rules relating to Fast Track Trial Costs at CPR45.38(3), which provide that in cases where fixed costs do not apply:

(3) Where the only claim is for the payment of money –

(a) for the purpose of quantifying fast track trial costs awarded to a claimant, the value of the claim is the total amount of the judgment excluding –

(i) interest and costs; and

(ii) any reduction made for contributory negligence.

Further support may be derived by analogy with the rules determining the basis upon which the Defendant’s fixed costs are to be calculated.  In this context, CPR45.29F provides:

(3) For the purpose of assessing the costs payable to the defendant by reference to the fixed costs in Table 6, Table 6A, Table 6B, Table 6C and Table 6D, “value of the claim for damages” and “damages” shall be treated as references to the value of the claim.

(4) For the purposes of paragraph (3), “the value of the claim” is—

(a) the amount specified in the claim form, excluding—

(i) any amount not in dispute;

(ii) in a claim started under the RTA Protocol, any claim for vehicle related damages;

(iii) interest;

(iv) costs; and

(v) any contributory negligence;

In the absence of any specific rule, practice direction or case law providing that the Claimant’s trial advocacy fee must be determined on the basis of the damages agreed or awarded after any deduction for contributory negligence, it is reasonable to argue that any contributory negligence should be disregarded when determining the applicable trial advocacy fee.

There are however robust arguments to the contrary, the most obvious of which is that to give the term “damages agreed or awarded” its plain and ordinary meaning favours the argument that the trial advocacy fee should be determined by reference to damages net of contributory negligence, rather than the value of damages on a full liability basis.

Furthermore, where Table 6B(C) of CPR 45.29C provides for the recovery of fixed costs totalling:

(a) £2,655; and
(b) 20% of the damages agreed or awarded; and
(c) the relevant trial advocacy fee,

the identical language used in relation to the element of costs proportionate to the “damages agreed or awarded” somewhat undermines the argument that the trial advocacy fee should be determined on the basis of the damages agreed or awarded disregarding any contributory negligence.

With regard to the calculation of  “20% of the damages agreed or awarded”, whilst there is no specific guidance in CPR45, reference is often made to the Practice Direction to CPR45, which provides at 45PD.2 that in road traffic accident cases settled prior to the issue of proceedings (those cases to which Part 45 II applies), fixed recoverable costs are to be calculated by reference to the amount of agreed damages which are “payable to the receiving party” and that, in calculating the amount of these damages, “where the parties have agreed an element of contributory negligence, the amount of damages attributed to that negligence must be deducted.”

It has accordingly become common practice to argue that the calculation of the “20% of damages agreed or awarded” should be based upon the damages agreed or awarded net of contributory negligence.

The clear inconsistency between the approach taken to the assessment of these fixed costs and the trial advocacy fee, when the wording “damages agreed or awarded” is identical in Tables 6B(C) and Table 6B(D) is difficult to rationalise.

Until or unless there is some binding case law, or the CPR provides much needed clarity on this matter, it is likely practitioners and the courts will continue to interpret this provision differently.

[1] Mendes v Hochtief (UK) Construction Ltd [2016] EHWC 976 (QB)

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