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A short but important decision on costs. Important because it will have an impact in a large number of cases rather than because the figures themselves are large when looked at case by case.

Suppose a case is started in the EL/PL portal as a public liability claim. The defendant fails to respond therefor the case leaves the portal. Proceedings are commenced and judgement is entered on liability. The only question remaining therefore is the assessment of damages by the court. That requires the listing of a disposal hearing. The matter is listed but then settles thus falling with Table 6D of CPR 45.29E.
The question is ‘has it settled before ‘trial,’ or put another way, is a disposal hearing to be classified as a trial? The short answer is ‘yes’.

In Bird, Lord Justice Briggs had this to say,

“13. First, listing a case for “disposal” means exactly what it says. The purpose of doing so is, so far as possible, finally to dispose of the case at first instance. A default or other judgment for damages to be assessed leaves that assessment outstanding, as the last stage in the final disposal of the proceedings. For that purpose it matters not whether the judgment has been obtained by default (as here) or on an application for summary judgment on liability, judgment on admissions, or after a liability only trial: see generally Part 26PD12(2).
14. …
15. Secondly, the fact that a disposal hearing might prove to be uncontested is, again, neither here nor there. It is common ground that, even after a judgment in default, the defendant may attend and oppose the claimant’s case as to quantification of damages at the disposal hearing. Again, if the possibility that such a hearing might prove to be uncontested were sufficient to prevent its listing being a trigger for the application of column 3, then that possibility exists at all kinds of final hearing, including traditional trials.
16. Thirdly…, listing for a disposal hearing is the trigger for the claimant (and any other party which wishes to take an active part at that hearing) to prepare and serve the requisite evidence…
This court is entitled to give weight to these observations from a judge with large experience in this particular field. Furthermore, the appellant gains nothing from the fact that this particular disposal hearing was listed for a 10 minute hearing. The County Court at Birkenhead deals with the quantification of damages in relatively small claims of this kind within ten or fifteen minutes on a regular basis, even if opposed, with counsel on both sides. The cases are routinely disposed of on the papers, without oral evidence, after full pre-reading by the judge, and with the benefit of the most succinct submissions, in every respect proportional to the modest amounts usually at stake.
17. Fourthly, there is a useful pre-history to the formulation “final contested hearing” in Part 45.29E(4)(c). Part 45.15 deals with the success fee percentages applicable in road traffic accident claims. By Part 45.15(6)(b), as it was before April 2013, a reference to “trial” was a reference to the final contested hearing. This rule was introduced in 2004. Lamont v Burton [2007] 1WLR 2814 was about a road traffic accident claim which had concluded at a disposal hearing. It was taken for granted in this court (rather than determined after argument) that the disposal hearing had been a trial for the purposes of Part 45.15. I consider it very likely that, when it adopted the same definition of trial in 2013, for the purposes of fixed costs in EL/PL Protocol cases, the Rule Committee had the analysis in Lamont v Burton well in mind.”

The upshot of all this is that, where a case settles before the disposal hearing the higher level of costs is recoverable. Particularly noteworthy in this decision is the approval of the attenuated way in which the Birkenhead County Court deals with disposal hearing (see paragraph 16 above)

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