I am grateful to Simon Fisher of DWF for sending me a copy of the judgment in Chisnall -v- RSA Northern Ireland Insurance Ltd, a copy of which is available here. It deals with an issue relating to fixed recoverable costs. What costs apply when a default judgment has been set aside? The judge holding, effectively, that the setting aside of the judgment meant that, for the purpose of fixed costs, the action should be seen as starting afresh.
A copy of the judgment is available here Chisnall v RSA Northern Ireland Insurance Ltd – Liverpool CC – Judgment – 20210726 V Final
THE CASE
The claimant brought an action for personal injury damages. It had fallen out of the protocol procedure. Proceedings were issued and judgment entered in default. Judgment was later set aside due to issues relating to service. The proceedings were compromised, shortly after the judgment was set aside, by the claimant accepting a Part 36 offer.
WHICH STAGE WERE PROCEEDINGS AT?
The parties did not agree which fixed costs applied. The judge held that the setting aside of the default judgment meant the matter had “started again” and fixed costs were related to the stage that the action was at when it was settled.
The issue to be determined today is what fixed costs apply to this case pursuant to table
6B, CPR 49.29C. The claimant’s position is that, having regard to that table, it is the third
column that applies to this case and, in particular, because that applies on or after the date of
listing but prior to the date of trial and the claimant relies upon a decision of the Court of
Appeal in Bird v Acorn Group Ltd [2016] EWCA Civ 1096. That case considered the issue
as to the extent to which disposal hearings amount to trials for the purposes of table 6B and
the third column and that decision effectively found that disposal hearings were a trial for the
purposes of table 6B.
4. The defendant says that the relevant column is the first column, that is that the costs are
payable because the legal stage at which the claim is at is we are on or after the date of issue
but prior to the date of allocation under Part 26.
5. I have been provided with a helpful skeleton argument from counsel for the defendant
Mr Teasdale and I have heard oral submission today from counsel for the claimant Mr Pilling
and I have also been provided with a bundle and referred to documents and cases in that
bundle.
6. The position of the defendant is that whilst it acknowledges the decision in Bird v
Acorn is authority for the proposition that a disposal hearing is a trial, and that that is also
authority for the proposition that there cannot be back tracking in a case which has been
listed for disposal but does not proceed as a trial on the date of the disposal hearing, that case
can be distinguished and is not relevant to this application because of the setting aside of the
default judgment in this case, that default judgment being the trigger for the listing of the
disposal hearing.
7. Mr Pilling says that Bird effectively should be followed, that this case was listed for a
disposal hearing and that table 6B is effectively a self-contained code. Bird makes it clear
that there can be no back tracking and that is effectively what the defendant is seeking to ask
the court to do in this case. In addition, Mr Pilling says that the procedural step of listing a
case for a disposal hearing remained, that disposal hearing simply being vacated by the order
which set aside the default judgment.
8. I am not persuaded that I am bound by the decision in Bird v Acorn. It seems to me
that the defendant’s analysis is the correct one, which is that the effect of setting aside the
default judgment is to cancel that judgment and any subsequent steps that follow and it seems
to me that the consequence of that is that this case should be viewed as one which has not
been listed for a trial and, therefore, that the appropriate costs should be those which follow
under the first column of table 6B.
9. I have heard submissions as well as to the alternative routes in which it has been
suggested I might reach the same conclusion, in particular in relation to CPR 45.24 and CPR
44.11, but it seems to me that in view of the finding that I have made in relation to the effect
of the default judgment and, therefore, the applicable costs provision, I am not required to
consider those alternatives in any greater detail.
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