In this blog, Nik Arora reviews the decision in Moutarde v SIG Logistics to limit the Claimant’s success fee in a mesothelioma claim to 27.5%.

Q. When is a trial not a trial?

A. When it’s a discrete dispute about costs.

In the case of Moutarde v SIG Logistics [2021] EWHC 1670 (QB) Calver J refused permission to appeal a Master’s determination that a mesothelioma success fee was limited to 27.5% rather than 100%.

Mr Moutarde brought a ‘living mesothelioma’ claim, having been exposed to asbestos in the 1970’s. Judgment was entered and the matter was listed for trial to assess damages. Many heads of loss were agreed, but an issue arose as to the provision of immunotherapy; specifically whether treatment outside of the UK would be provided without further application. The respective solicitors were unable to agree on the wording of a final consent order regarding this one issue.

On the morning of trial, 23 January 2020, agreement was reached between Counsel on the wording concerning immunotherapy. One discrete matter remained; the Defendant sought its costs occasioned by having to attend for trial, alleging that the Claimant had failed to obtain wording in the consent order which was more advantageous than had been offered previously. This was heard by Stewart J, who concluded, on a detailed reading of the correspondence between the parties, that the Claimant was entitled to his costs of the day. The Defendant’s application for costs was thus dismissed and the Judge endorsed the consent order as had been agreed between Counsel.

In his Bill of Costs, the Claimant then sought an uplift of 100% in respect of his costs, arguing that the matter had “concluded at trial” within the meaning of former CPR rule 45.24(1)(a). In the Points of Dispute, the Defendant contended that the matter had “concluded before the trial had commenced”, within the meaning of former CPR rule 45.24(1)(b)(i), and that a 27.5% uplift was appropriate. Agreement was otherwise reached in respect of the Bill, leaving only this Point of Dispute in contention. Various authorities indicated the vague outline of the distinction between “concluding at trial” and “before the trial had commenced”, but none were precisely to the point, and all could be distinguished to some degree on their facts.

At a video hearing in November 2020, Master Rowley found in favour of the Defendant. The trial had not commenced, and the Claimant was limited to a 27.5% uplift. The Claimant sought leave to appeal, which was rejected by Master Rowley and then again on paper by Johnson J. An oral application was then made for permission, which was heard by Calver J. The Defendant was not required to attend at the oral re-hearing.

Calver J refused permission to appeal, holding that Master Rowley had been correct to limit the success fee to 27.5%.

Firstly, when read in its proper context, the claim which was arguably “concluded at trial” was Mr Moutarde’s claim for damages resulting from asbestos exposure and his consequent mesothelioma. It was not the dispute relating solely to costs of attendance at a one-day hearing, as per [19] of Calver J’s judgment. Therefore, earlier obiter observations of Wilson LJ; that a hearing concerning costs in principle would be capable of being a trial, were not directly relevant. At [20] Calver J further observed that some absurd consequences would arise if the Claimant’s interpretation was correct, with claimants being incentivised to leave small discrete issues about costs at large in the hope of securing 100% success fees whilst simultaneously avoiding all the risk of losing at trial (which the success fee is designed to compensate them for taking).

Secondly, the fact that there was an argument about a discrete issue of costs did not cut against the generality of the costs order relating to the claim as a whole. The Claimant’s costs of the action had been agreed in principle. Calver J noted, at [24] that Stewart J was always presented with a consent order providing for the Claimant to have his costs of the claim. All that was being requested by the Defendant was a further line to the order that “the separate costs of today’s hearing shall be paid by the Claimant”. This was insufficient to turn the claim into one concluded at trial. At [25], Calver J adopted earlier reasoning of Slade J that the provision was “not triggered by the commencement of any hearing of whatever nature related to the final contested liability or assessment of damages hearing.”

Whilst this is technically a refusal of permission in an application for permission to appeal, and is thus not authority to be cited in Court, it serves as a useful exposition of just where the boundary line lies between a claim concluding at trial and one that concludes before a trial. The fact that only one discrete issue on costs remained between the Parties clearly carried the day for the Defendant. Had more substantive issues fallen to be determined, including questions of costs more generally, the decision may have gone in favour of the Claimant. The Defendant was also aided by the fact that the case was introduced to Stewart J by being described as settled but with one discrete issue remaining. The fact that Claimant’s Counsel in her opening address to Stewart J, repeatedly referred to the “Defendant’s application for costs” as a discrete issue, with this nomenclature then adopted by the Judge, also clearly pointed towards the conclusion ultimately reached by Calver J.

Nikhil Arora was Counsel for the Defendant in the costs hearing before Master Rowley. He was led by Jayne Adams QC in the hearing before Stewart J. Both Jayne and Nikhil were instructed by Weightmans, Birmingham.