Multiple Claimant RTAs and Fixed Costs - one for all or one for each?

07 JUNE 2016

Robert Goodwin and Robert Vernon consider what happens if two claimants are injured in the same RTA and are successfully represented at trial by the same solicitors and/or counsel.

Is each claimant entitled to an award of fixed costs under CPR 45.29B or are they limited to one award of fixed costs between them?

There are conflicting thoughts on this issue but there are a growing number of examples of courts awarding one set of fixed costs (and trial advocacy fees) to each successful claimant.  In Neary & Neary v Bedspace Resource Limited (2015), His Honour Judge Pearce (sitting at Chester County Court) considered the application of the Fast Track fixed costs regime under section IIIA of CPR Part 45 to a single claim concerning multiple Claimants.  He ruled that where there are multiple successful Claimants within the same claim, their legal representative is entitled to the equivalent number of fixed fees and trial advocacy fees.  It is worth noting that the same approach has been taken (albeit with different reasoning) by District Judge Hardy in Sunderland County Court (as reported in Legal Futures on 12 May 2016) and by Deputy District Judge Jones in Cardiff County Court (Robert Vernon, one of the authors of this article, having acted for the successful Claimants in that case).

Case Analysis - Neary

In the Neary case, the Learned Judge found in favour of the Claimants in an RTA claim, awarding total damages of £6,783.33 (£3,588.33 to Claimant 1 and £3,195 to Claimant 2).  The claim had commenced under the RTA Pre-Action Protocol before Part 7 proceedings were subsequently issued, with the claim being disposed of after trial.  Following judgment, Claimants’ Counsel correctly made an application for fixed costs pursuant to CPR 45.29B (the categories and figures being set out in paragraph C in Table 6B). 

Table 6B states that successful Claimants in such a scenario are entitled to fixed costs consisting of three ostensible components:

(a)   £2,655 fixed fee;

(b)   20% of the damages agreed or awarded; and

(c)    the relevant trial advocacy fee (contained within paragraph D in Table 6B).

Claimants’ Counsel stated that each Claimant should be able to recover each component within the table.  Defence Counsel submitted that the costs should be awarded as a global figure for the claim.  The difference between these two approaches is whether (a) and (c) are awarded multiple times (whether (b) is awarded of the total or for each Claimant makes the same result).  The trial advocacy fee does increase within certain award bands but even taking this into account the costs award inevitably increases to a greater extent when the award per claimant approach is taken.

The Learned Judge determined the costs application in favour of the Claimant.  In giving judgment, the Learned Judge observed that ‘there is nothing in Part 45 which definitively guides the court as to which of these two interpretations is right.  The term ‘claim’ is used interchangeably in the CPR to mean an individual cause of action (see for example CPR 7.3) or a case which may comprise one or more individual causes of action (see for example CPR 19.1) so in principle either interpretation could be said to be consistent with the rules.’  The Learned Judge appreciated that whichever approach he preferred the successful party would gain a ‘windfall’ from his judgment.  He stated however that ‘the additional work involved in representing two Claimants will almost certainly be more than that involved in representing one’ and that the recovery of 20% of the total damages was unlikely to cover the entirety of that extra work. 

The Judge cited as the foundation of his ruling the wording of Table 6B which states that it deals with fixed costs recoverable ‘where a claim no longer continues under the RTA protocol.’  Under the Protocol, as the claim notification form can only apply to one person and therefore there cannot be a claim with multiple claimants, the Judge was of the view that Table 6B ‘cannot (be) properly interpreted to mean the costs of the claim in any more broad sense than that contemplated by the protocol, that is to say the cause of action of an individual.’

The rationale for each Claimant being entitled to a separate award of fixed costs

There are numerous aspects to the submission that each successful Claimant should be entitled to a separate award of fixed costs i.e. the £2,655 fixed fee and a trial advocacy fee even where they are represented by the same solicitors and/or counsel.  The arguments include the following, some of which formed the basis of the decisions in the three cases referred to above:

  • Part 45 does not definitively provide for which of the two competing approaches is the right one;
  • The fixed costs regime in section IIIA of Part 45 is for claims which began life in the RTA portal.  In that portal, the word “claim” means a claim by a single claimant; it is not possible to include more than one claimant’s claim in a Claim Notification Form and so the word “claim” in section IIIA of CPR Part 45 ought to be interpreted in the same way;
  • The fixed costs payable under section IIIA of Part 45 are prescribed by reference to the stage of proceedings at which the claim concludes (either by settlement or judgment).  It must follow that each claimant’s claim could conclude at a different stage of proceedings.  In such circumstances, it is logical that each Claimant’s claim should attract its own award of fixed costs;
  • If each Claimant were not entitled to a separate award, there would be a disincentive to solicitors to accept instructions from more than one potential claimant arising out of a RTA, thereby giving rise to a potential of more claims being issued with the result that more disbursements (particularly court fees) will be incurred.  Such an approach would be contrary to the overriding objective and the general spirit of the CPR;
  • In the same way as Part 36 operates, section IIIA of Part 45 is a self-contained code making provision for awards of fixed costs in cases which began life in the RTA portal and should take precedence over any other, apparently inconsistent part of the CPR;
  • When considering the issue of trial advocacy fees, whilst it might be argued that the correct approach is that set out in CPR 45.40 (i.e. one trial advocacy fee calculated by reference to the total damages awarded to all successful claimants), the rules committee have not made section IIIA of Part 45 subject to CPR 45.40 and could have easily done so if that was the intention.

Practical issues

Adopting the approach taken in the three cases mentioned above will help to maximise (in a legitimate way – as observed by DJ Hardy) the fixed costs that can be recovered in a multiple claimant RTA claim.  These decisions provide first instance judicial approval to such an application being made on the Claimant’s behalf.   Although not binding, they undoubtedly highlight an issue within the CPR which may come under greater scrutiny as more legal representatives put forth the argument following success in such Fast Track claims.

If you have any comments about anything raised in this article or queries about the work we do please contact us at civil@9parkplace.co.uk

 

Robert Vernon and Robert Goodwin

 

This article is intended as interest and information only.  It should not be considered legal advice and the reader is encouraged to undertake their own research and study of the matters discussed here before relying on the same.