As post-1st October 2023 fixed costs cases are increasingly reaching trial, advocates and litigators are becoming more acquainted with the new fixed recoverable cost regime, which differs in some aspects from the pre-1st October 2023 regime.
I represented a Defendant at a non-pi RTA Fast Track trial, where I was successful in having the claim dismissed. My opponent and I were able to agree on the costs quite easily, but there was a discussion as to what would have happened if the Claimant had succeeded because quantum had been agreed, subject to liability, at a sum far less than the pleaded amount.
I was going to argue that the Claimant was restricted to a trial advocacy fee reflected by the awarded amount and not the pleaded amount. My opponent said that under the new Part 45 fixed recoverable costs regime, there was no scope to make such a submission.
Pre 1st-October 2023 regime
The trial advocacy fees were lower in the pre 1st-October 2023 Part 45 regime, but they also had a different formula to calculating the correct trial advocacy fee:-
It is clear that the trial advocacy fee is based on the level of damages ‘agreed or awarded’. If the matter had been subject to the pre-1st October 2023 regime, there would be no dispute. However, the issue comes about because the wording in the post-1st October 2023 regime is different.
Post-1st October 2023 regime
In Practice Direction 45, the Fast Track Table gives the following trial advocacy formula:-
The use of ‘the value of the claim‘ is potentially devastating for Defendants who successfully reduce the value of a claim, but still have a judgment against them. Why should the Claimant get a windfall because a claim has been valued at X but Y is awarded, which would impact the trial advocacy fee.
The Defendant might look at CPR 45.6 and consider how the rules expressly calculates the Defendant’s costs:-
45.6.—(1) Where, in any case to which Section VI, Section VII or Section VIII of this Part applies, the court makes an order for costs in favour of the defendant, the allowable costs are—
(a)the fixed costs set out in Section VI, Section VII or Section VIII;
(b)the applicable disbursements set out in Section IX of this Part.
(2) For the purpose of assessing or determining the costs payable to a defendant by reference to the fixed costs in Table 12 and Table 14—
(a)“value of the claim for damages” and “damages” shall be treated as references to the value of the claim, as defined in paragraph (3); and
(b)if the claim is discontinued, a reference in Table 12 or Table 14 to the stage at which a case is settled shall be treated as a reference to the stage at which the case is discontinued.
(3) For the purposes of paragraph (2)(a), ‘the value of the claim’ is—
(a)the amount specified in the claim form, without taking into account any deduction for contributory negligence, but excluding—
(i)any amount not in dispute;
(ii)interest; or
(iii)costs;
(b)if no amount is specified in the claim form, the maximum amount which the claimant reasonably expected to recover according to the statement of value included in the claim form under rule 16.3;
(c)if the claim form states that the claimant cannot reasonably say how much is likely to be recovered—
(i)£25,000 in a claim to which Section VI applies; or
(ii)£100,000 in a claim to which Section VII applies;
(d)if the claim has no monetary value—
(i)the applicable amount in rule 45.45(1)(a)(ii) in a claim to which Section VI applies; or
(ii)the applicable amount in rule 45.50(2)(b)(ii) in a claim to which Section VII applies; or
(e)if a claim includes both a claim for monetary relief and a claim which has no monetary value, the applicable amount in sub-paragraph (d) taken together with the applicable monetary value in sub-paragraph (a), (b) or (c).
It is very odd that PD45 would have the description of the “value of the claim” for calculating the quantum of the trial advocacy, but require the Defendant to have CPR 45.6 to specifically define “value of the claim” as the value on the Claim Form.
Discussion
One can describe elements of Part 45 as a self-contained set of rules intended to give certainty. Either the rules give you the ability to do something or they do not. My opponent seemed to suggest that, as the description in PD45 was ‘value of the claim’, with no description of what value of the claim meant for a Claimant, it had to be taken literally.
There is a lot of force in that argument. However, it would make sense that Defendants in Part 45.6 having a specific definition would insinuate that the value claim does not mean the value of the claim in the claim form.
I have not yet had it tested, but my opponent mentioned that, to date, the Court has only once found that the claimant’s trial advocacy fee was based on the value, and not the related case.
Given that some pre-1st October 2023 Part 45 rules have only started to be tested, it won’t be surprising if there remains an absence of any helpful authority on this issue for some time, if at all.
Information
AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026.
From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.