So far, since the extension of Fixed Recoverable Costs (FRC), there have probably been very few, if any, cases which have gone as far as trial. Unfortunately, once there are, we will start to see all kinds of problems arise because of yet another case of poor drafting.
When the FRC rules were first introduced, the Civil Procedure Rules Committee (CPRC) had overlooked the fact that some cases settle or are removed from the list very close to, but just before, a trial commences. As such, the rules as originally drafted made no provision for recovery of any advocates’ fees for late settlement or removal from the list. Following submissions from the Bar, the rules were amended in April 2024 to allow for a full or abated fee if the matter settled late or the trial was removed from the list. Unfortunately, the CPRC then overlooked the fact that some cases are removed from the list but then re-listed and proceed to trial. The rules are entirely unclear as to what costs are payable in this situation.
Looking at the Fast Track:
D. Trial advocacy fees
| Complexity Band 1 | Complexity Band 2 | Complexity Band 3 | Complexity Band 4 | |
| (1) Where the value of the claim is not more than £3,000 | £619 | £619 | £619 | £1,652 |
| (2) Where the value of the claim is more than £3,000, but not more than £10,000 | £877 | £877 | £877 | £1,652 |
| (3) Where the value of the claim is more than £10,000, but not more than £15,000 | £1,342 | £1,342 | £1,342 | £2,168 |
| (4) Where the value of the claim is more than £15,000 | £2,168 | £2,168 | £2,168 | £2,994 |
Late settlement or removal from the list are dealt with thus:
| 5) Where the claim is listed for trial, but is removed from the list or settled— on the day of trial; or not more than 1 day before the date listed for trial | 100% of the applicable trial advocacy fee |
| (6) Where the claim is listed for trial, but is removed from the list or settled more than 1 day, but not more than 2 days, before the date listed for trial | 75% of the applicable trial advocacy fee. |
It is therefore clear that, for example, where a case is removed from the list 1 day before the trial this would trigger recoverability of the full 100% trial advocacy fee. But what happens if the case is then re-listed and settles at trial? Is the full 100% claimable again or has this been “spent” with nothing further recoverable? The rules are entirely silent on the point. Indeed, a matter may be taken out of the list on a number of occasions at very late notice. Is the trial advocacy fee potentially recoverable multiple times or only once?
If the 75% element is triggered, surely at least the 25% balance would be payable if the matter then goes to trial, but the rules say nothing about this. Alternatively, does one “pocket” the 75% element regardless at the point the case is removed from the list and then get the full 100% in addition if it then settles at trial?
The problem is, perhaps, even more stark when looking at the Intermediate Track:
| Complexity Band 1 | Complexity Band 2 | Complexity Band 3 | Complexity Band 4 | |
| S10
Advocacy fee: day 1 |
£3,303 | £3,613 | £4,129 | £5,988 |
| S11
Advocacy fees for subsequent days, less an amount equivalent to 50% per day where, on any subsequent day, the trial lasts no more than half a day |
£1,445 | £1,755 | £2,065 | £2,994 |
Late settlement or removal from the list are dealt with thus:
| S16
Advocacy fee—
(a) where the claim is listed for trial, but is removed from the list or settled—
(i) on the day of trial; or
not more than 1 day before the date listed for trial;
|
100% of the applicable advocacy fee in S10 |
| (b) where the claim is listed for trial, but is removed from the list or settled more than 1 day, but not more than 5 days, before the date listed for trial | 75% of the applicable advocacy fee in S10 |
The much higher S10 figure, compared to S11, is clearly designed to reflect a “brief fee” with the amount to cover both trial preparation and the first day of the trial. The lower S11 figure is then intended to act as a “refresher”. If the S11 can be recovered more than once where a matter is removed from the list and then re-listed, this would result in the full trial preparation time being recovered more than once. There is no good reason why this would have been intended.
It would have made sense to allow the S10 figure to be claimed once and then, if the matter is re-listed, the S11 figure would be recoverable when the case actually goes to trial (and any subsequent day of trial). However, this is now how the section is drafted and there is no indication as to how it is meant to work.
You couldn’t make it up.
1 thought on “Fixed Trial Costs if case removed from list and then re-listed”
I think it is clear that if the case is relisted, you get a fresh advocacy fee, and nor do I see anything surprising about that. If you have to re-prepare a trial after weeks or months, you are entitled to a further brief fee, not a refresher. Moreover, these cases are very unlikley to be listed for advocates’ convenience, and in very many cases the advocate for the adjourned trial will be a new advocate who has to prepare the case from scratch.