Dahele v Thomas Bates and Sons Ltd: SCCO 17 Apr 2007

The court heard and accepted an argument that there was a lacuna in the CPR provisions relating to the uplift in counsel’s fees in the equivalent rules relating to employer’s liability claims. The rules relating to counsel’s fees unlike those dealing with solicitors, did not provide for a percentage uplift when a case settled on the day of a trial before the commencement of the hearing: ‘I accept the submission made by Mr Morgan QC that in relation to counsel’s success fees there is an intermediate stage, not available to solicitors, where ‘the claim concludes 21 days or less before the date fixed for the commencement of the trial’. This is the reference referred to in Table 7 to Rule 45.25. I accept that a case which settles on the day of the final hearing cannot be a claim which concludes 21 or any other number of days ‘before the date fixed for the commencement of the trial’. This case settled on the day of trial. Where settlement takes place on the day fixed for the commencement of the trial there is a lacuna in the Civil Procedure Rules. Counsel would get a 75 per cent success fee if the case settles up to midnight on the day before the date fixed for the hearing. Conversely, he would get 100 per cent if the judge at the commencement of the trial instructs the parties to go and settle the case as soon as it has been called into court. There would appear to be no figure prescribed by Table 7 in the period of time from one minute past midnight on the day of the trial to the time for commencement of that trial later that day.’ The court used the perceived lacuna in the provision relating to counsel’s fees to interpret ‘trial’ in the rule relating to solicitors: ‘In those circumstances I accept the submission of Mr Morgan QC that a case ‘concludes at trial’ if it settles on the day fixed for trial and Rule 45.25(1)(a) and 45.24(1)(a) must be interpreted in that way.’


Master Haworth


[2007] EWHC 90072 (Costs)




England and Wales

Cited by:

CitedAmin and Another v Mullings and Another QBD 17-Feb-2011
The parties disputed the uplift applicable where a road traffic personal injury claim was settled on the day before the full trial, and whether ‘ the learned Recorder erred in holding that the claim concluded at trial because the Claimant’s claim . .
Lists of cited by and citing cases may be incomplete.


Updated: 15 July 2022; Ref: scu.251790