Recent and Coming Battles in the Personal Injury Costs Wars A Practitioner s Guide

Transcription

1 Recent and Coming Battles in the Personal Injury Costs Wars A Practitioner s Guide Andrew Roy and Alex Carington CPD Ref: AVV/CHRW 12 King s Bench Walk, Temple, London EC4Y 7EL, Tel: , Fax: , Video Conferencing: chambers@12kbw.co.uk, Website: DX 1037 Chancery Lane 1

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3 Introduction 1. Costs remain one the most frequently and hotly disputed issues in personal injury litigation. 2. There has been a glut of reported decisions over the past year, and many more disputes loom on the horizon. This paper aims to summarise the former and anticipate the latter by reference to the following areas: (a) Part 36 and Offers to Settle (b) Costs Orders in Principle - Partial Success (c) Fixed Uplifts (d) Other CFA Disputes (e) Predictive and Other Fixed Costs (f) Interest (g) Miscellaneous Costs Issues (h) Other Likely Future Controversies 3. Please note that the issue of costs in fraudulent/exaggerated claims is dealt within in a separate talk and paper by Richard Methuen QC and William Featherby QC. Consideration of that topic within this paper has therefore been deliberately excluded to avoid duplication. 4. The normal disclaimer. This is a large topic. This paper does not affect to be comprehensive. It will précis the cases, the main principles therein and the practice points thereby arising. It is a summary and cannot be a substitute for a close study of the relevant law, and application of the law to the facts of any particular case. 3

4 Part 36 and Offers to Settle The Operation of Part The effects of the 2010 decision in Gibbon v Manchester City Council [2010] EWCA Civ 726; [2010] 1 W.L.R where it was held that a Part 36 offer was open for acceptance and unless and until it was explicitly withdrawn are still being felt. The breadth of the ratio of Gibbon is well illustrated by Hadaway v Raza (unreported, Judge Mitchell, Central London County Court, 12 May 2011) where it was held that D could accept a Part 36 offer during a period in which the claim was stayed by consent. 6. By contrast, however, the court in Joyce v West Bus Coach Services Ltd [2012] EWHC 404 (QB) held (perhaps unsurprisingly) that a Part 36 offer could not be accepted where a claim had been struck out for breach of an unless order and before any relief from sanction had been granted. 7. The other landmark recent decision in this area was C v D (2011) EWCA Civ 646; [2012] 1 All E.R C served a purported Part 36 offer which was stated to be open for 21 days from the date of this letter (the relevant period ). D attempted to accept it more than 1 year later (less than a month before trial) C sought a declaration it could no longer be accepted on the basis that D should have accepted it when it was stated to be open. In the High Court, Warren J (Chancery Division) concluded that the wording provided a time limit for acceptance of the offer which had expired and that a time limited offer could not be a Part 36 offer. 8. D then appealed to the Court of Appeal. There were 3 issues: (i) Can a Part 36 Offer be time limited? 4

5 (ii) (iii) What does open for 21 days mean? Whether the offer was withdrawn by the time limited terms of the offer itself or by subsequent s. Rix LJ gave the substantive judgment. The issues were resolved as follows: (i) (ii) (iii) The Part 36 regime cannot accommodate a time limited offer. Open for 21 days meant the offer would not be withdrawn for 21 days rather than it automatically expiring. On the facts there was nothing to show the offer was withdrawn. Burton LJ neatly summarised the key point as follows: 84. Any ambiguity in an offer purporting to be a Part 36 offer should be construed so far as reasonably possible as complying with Part 36. Once it is accepted that a time-limited offer does not comply with Part 36, one must approach the interpretation of the offer in this case on the basis that the party making the offer, and the party receiving it, appreciated that fact. 85. I agree that the normal effect of the phrase the offer will be open for 21 days is that the offer is not open for acceptance after 21 days. However the use of that phrase is consistent with a warning that the offer will be withdrawn after 21 days. Given the clear express intention of the respondent to make an offer complying with Part 36, it should be so construed. 9. The need to interpret an offer, if possible, as being a Part 36 one was confirmed in Howell v Lees-Millais [2011] EWCA Civ 786 [2011] 4 Costs L.O The facts of this case are complex and need not be set out in full. Neuberger MR described them having a long and tangled past and were likely to have a long and tangled future. An intended Part 36 offer was made but was not made strictly within Part 36 but all parties proceeded as if were a Part 36 Offer. The Court of Appeal upheld that the letter should, if possible, be treated as a Part 36 offer as the parties, through their respective solicitors, (a) treated the offers contained in the two letters sent in April 2009 as having been made under Part 36, and (b) said in 5

6 terms that those offers were still in force well after the 21 days therein referred to had passed. As such the intentions and actions of the parties can be relevant applying the approach used in C v D. 10. A different result was arrived at in Thewlis v Groupama Insurance Co Ltd [2012] EWHC 3 (TCC); [2012] T.C.L.R. 3. C was the owner of a property insured by D. He made a claim in respect of subsidence damage which D disputed. In September 2008, before the issue of proceedings, C made an offer to settle the proceedings which was rejected. The letter stated that the offer was made pursuant to Part 36 and remained open for acceptance for 21 days after which it could only be accepted if costs were agreed or the court gave permission. Proceedings were issued in May 2011 and in October 2011 D purported to accept the offer. C submitted that D could no longer accept the offer arguing that it was not a Part 36 letter as it failed to comply with CPR r. 36(2)(b): it did not state that it was intended to have the consequences of Part 36 and the reference to acceptance after 21 days was inconsistent with Part 36. D contended that it was plainly intended to be a Part 36 offer. D applied for a declaration that proceedings brought by the respondent Claimant had been stayed pursuant to CPR r Behrens HHJ held that the failure of the letter to comply with r.36.2 was fatal, applying Carillion JM Ltd v PHI Group Ltd [2011] EWHC 1581 (TCC), [2011] BLR 504 and Huntley v Simmonds (discussed below). He distinguished C v D on the basis that was not clear that C intended the letter to have the consequences of the new Partt 36 which came into force in April The sentence in the letter that after 21 days the offer could only be accepted if costs were agreed or the court gave permission was inconsistent with Part 36. Also, whilst the letter referred to some of the consequences of Part 36 it did not refer to them all and, therefore, was not a Part 36 offer. D s application was refused. A different conclusion was reached by of HHJ Platt Shah v Elliot (unreported, Rotherham County Court, 27 June 2011) where he found that the offer was not a Part 36 offer because it did not state it was intended to have the costs consequence of Section 1 6

7 of Part 36, instead referring to predictive costs. We would however suggest that the correctness of this decision must be open to question. 11. The Court of Appeal held last week in PHI Group Ltd v Robert West Consulting Ltd [2012] EWCA Civ 588 that the failure to specify a period of not less than 21 days within which the defendant will be liable for the claimant's costs in accordance with rule if the offer is accepted does take an otherwise compliant offer outside Part 36. This was a construction claim. The main contractor C sued a specialist sub-contractor (D1) who in turn brought Part 20 proceedings against a consultant engineer (D2). C settled its claim against D1 but promptly issue fresh proceedings for the balance of damages against D2. D2 by amendment counterclaimed against D1 in respect of any future liability it might have to C. C succeeded against D2 at trial. Liability between the defendants was apportioned 60/40. D2 agreed to pay C s costs. D1 was ordered to pay 20% of the same. D1 was ordered to pay 30% of the costs of D2 s contribution proceedings, with no order as to costs on D1 s contribution claim. D1 appealed, relying a purported Part 36 offer of 70/30 in D2 s favour made before any contribution proceedings were brought. The judge had held that this was not a Part 36 offer, and that it was not otherwise effective as it was implicitly withdrawn by a subsequent drop hands offers and that it only related to C s claim against the D1. The Court of Appeal held that the need to specify a period under 36.2(2)(b) was mandatory. That the offer letter was silent in this regard was fatal. Rix LJ at [42] made these salutary (albeit obiter) observations: If the offer were to refer to 21 days as the "relevant period", a phrase that is defined in rule 36.3(1)(c) as being the period stated under rule 36.2(2)(c), it seems likely that there would be sufficient compliance with rule 36.2(2)(c), for in such a case the 21 day period for acceptance would be clothed with the costs consequences provided for in CPR Part 36. The specification of the period would be sufficiently clearly linked with the terms of rule 36.2(2)(c). There could be other ways, besides tracking the words of the rule itself or referring in terms to the period as being specified for the purposes of rule 36.2(2)(c), of ensuring that the reader would understand that the period specified is indeed the period referred to in that paragraph of the rule, having consequences for costs, not merely for acceptance of the offer. If the offer were to identify a 21 day period for 7

8 acceptance, but with nothing more said, it does not seem to me clear that this would suffice for the purposes of rule 36.2(2)(c). At any rate, there does not seem to be a decision to the effect that such words would comply with that requirement of the rule. The safe course must be to be more specific, either by using the words of the rule or by including a reference to the relevant paragraph of the rule, in relation to the stated period. The Court further held that: A non-compliant purported Part 36 offer, even if only technically so, cannot simply be treated as a bona fide Part 36 offer. It instead is a factor in the general discretion. (Obiter) Even a minor technical slip would preclude enhanced Part 36 interest. The judge was wrong to construe the offer as only relating to part of proceedings. It did not follow from the fact that the later offer was inconsistent with the earlier one that the earlier offer had been implicitly withdrawn. A party is entitled to leave open inconsistent alternative offers. There was no implied withdrawal. Exercising the discretion afresh, D2 should have accepted the non-part 36 70/30 offer and would have been better off if it had. D2 was therefore ordered to pay D1 s costs of the contribution proceedings. As regards this last point, it is debatable how far, if it all, this would apply in the case of straight money offers from a defendant to a claimant in a personal injury claim. 12. This decision is broadly consistent with the earlier personal injury authority of Huntley v Simmonds [2009] EWHC 406 (QB). This was a brain damage case. D made a Part 36 offer including periodical payments. C rejected this but failed to obtain a more advantageous award at trial. C argued that the Part 36 offer was defective as it did not comply with CPR r.36.5(4)(d) in that it omitted to state how the continuity of payment would be secured. D argued that a technical defect 8

9 should not make its Part 36 offer non-compliant; alternatively, the court should exercise its discretion under CPR r.44.3(4)(c) to produce same result as if the offer complied with Part 36. Underhill held that the omission was a formal defect in respect of a mandatory requirement. As such, D s offer did not comply with Part 36. However, he further held that the defects were purely technical and caused no real uncertainty or prejudice to C and that it was therefore appropriate under r.44.3(c) to provide for the same costs consequences as if D s offer had been Part 36 compliant. He rejected C s argument that it would be wrong to put a party who had failed to comply with the rules in the same position as a party who had so complied, as it made the rules pointless. He noted that D had lost the strong presumption that the Part 36 cost consequences would apply and was at the mercy of the court to exercise its discretion. 13. That non-part 36 offers will often have some costs potency (at least for Defendants), but less than might have been the case under the previous Part 36 regime, has been confirmed by the several recent cases: French v Groupama Insurance Co Ltd [2011] EWCA Civ 1119; [2012] C.P. Rep. 2. D offered to settle a claim in 2006 for 115,000 and again in C rejected the offer and was awarded 132,000. The Judge held, applying Stokes Pension Fund v Western [2005] EWCA Civ 854; [2005] 1 WLR 3595, that given that damages had risen by 20,000 after the expiry of the offer she should have accepted the offer and awarded D its costs from the offer onwards. On appeal it was held that as the original offers failed to meet the requirements of the Part 36 in force at the time they were not supported by a payment into court the Stokes principles did not apply. The Court did however go on to consider costs and found that applying r.44.3 that there should be no order as to costs save that C should be entitled to costs up until the expiry of the 2007 offer. Epsom College v Pierse Contracting Southern Ltd (In Liquidation) (Formerly Biseley Construction Ltd) [2011] EWCA Civ 1449; [2012] TCLR 9

10 2. There had been a flooding in C's dining hall caused by a leaking under floor pipe. C issued a letter of claim against D on the basis that the leak was caused by a nail having been negligently driven into the pipe by D. C made a Part 36 Offer which D rejected a few days before the expiry of the 21-day period. C issued proceedings and made a lower second Part 36 offer which was not accepted. A third offer (not under Part 36) was also made and rejected. C withdrew its second and third offers but emphasised that its first offer remained open. After trial, judgment was made in favour of C and the court granted C costs based on its second Part 36 offer (which made been withdrawn). D appealed. On appeal, it was common ground that the judge's award of costs based on the second Part 36 offer was technically illegitimate as that offer had been withdrawn. The question was whether the award could or properly should be translated into Part 36 costs consequences under the surviving first offer or under Part 44. It was not possible to rationalise the judge's reasons as amounting to a decision to award indemnity costs under Part 44; he had only ever been concerned with Part 36. It was not therefore realistic or right for the instant court to consider its Part 44 powers as that would be to raise a discretionary issue which had not been raised before the trial judge. However, on the particular facts of this case, the first Part 36 offer was valid and reliance on that offer could be substituted for the second offer from a suitable period after production of the pipe. Indemnity costs would therefore be granted from that date and the essence of the judge's disposal of the question of costs would be upheld. Owners and/or Bareboat Charterers and/or Sub Bareboat Charterers of the Ship Samco Europe v Owners of the Ship MSC Prestige [2011] EWHC 1656 (Admlty); (2011) 161 NLJ 988. C s oil tanker collided with D s container ship. C made a Part 36 Offer to settle liability 60:40 in C s favour. 17 months after the offer had been made, and two months before trial, C withdrew it and offered to settle liability two-thirds/one-third in C s favour. At trial liability was apportioned 60:40 in favour of C. It was held that where an offer had been withdrawn, which should have been accepted, it would not 10

11 be unjust to award the offeror all its costs from 21 days after the offer was made because had the offer been accepted no further costs would have been incurred thereafter. That C withdrew their Part 36 Offer two months before trial did not make it unjust to order that C should get all of their costs from 21 days after the offer was made. D should pay 60% of C's costs before that date, and C should pay 40% of D's costs. Late Acceptance 14. Recent case law has tended to confirm that it is extremely difficult for a claimant who accepts a Part 36 offer late to persuade the court that the defendant should not have its costs during the period of delayed acceptance: Lumb v Hampsey [2011] EWHC 2808 (QB). C suffered a traumatic brain injury in a road traffic accident for which liability was admitted. D made a Part 36 offer which was accepted by C outside the 21 day relevant period. C argued that it would be unjust to make the usual costs order under CPR r.36.10(5) because (i) at the time of the offer he was undergoing rehabilitation and it was reasonable to wait and see whether it was successful; (ii) any settlement needed approval from the Court of Protection and approval was unlikely on the basis of the medical evidence and counsel s opinion at the time and further complicated by a change in deputy due to his marriage breakdown; (iii) it was reasonable to await further medical reports; (iv) the advice to accept the offer was based on an improvement in his condition, a change in capacity and a change to his care needs in light of a new relationship. Lang J held that the test under r.36.10(5) was whether the usual costs order should be departed from because it was unjust for C to pay D s costs; departure would be the exception. C s arguments were insufficient grounds for departing from the usual order. At the time of the offer, C s advisors had sufficient expert evidence, knew that C s marriage was at an end and were clearly able to value the claim. Any difficulties about the Court of 11

12 Protection were hypothetical. Lang J declined to exercise its discretion under CPR r (5) Although it did not apply in this case, the court confirmed that there might be circumstances when the claimant being a patient had implications which made it unjust to make a costs order against him. It appears that in order for it to be unjust to set aside the normal costs order following late acceptance of a Part 36 offer, it must be impossible or nearly impossible to accurately value the case at the time of the offer. The court also indicated that any difficulties should be communicated to the defendant in these circumstances and an extension of time on the offer sought. SG (a child by his mother and litigation friend AG) v HK Hewitt QBD (Popplewell J, unreported 2 December 2011). C, who was 14-years-old, had sustained visible facial scarring and frontal lobe brain injury in a road traffic accident when he was six. He sought damages from D. In April 2009, D made a Part 36 offer in the sum of 500,000. It was not accepted within the 21 day period; however, it was not withdrawn and C later indicated his willingness to accept the offer. D remained willing to pay that sum by way of settlement, and the court approved it. An issue arose as to the effect the Part 36 offer should have in relation to costs. C sought all the costs to date. D considered C liable for costs after the expiry of D s Part 36 Offer. C contended that it was reasonable not to have accepted the Part 36 offer in the light of the existing medical evidence, and to have adopted a tactic of encouraging D to keep the offer open whilst having further investigations performed. The Court held normal rule was that a defendant would be entitled to his costs incurred after the expiry of the Part 36 offer. The court would only exercise its discretion not to follow that rule in exceptional cases, Kunaka v Barclays Bank Plc [2010] EWCA Civ 1035, (2011) 2 Costs LR 179 followed. The incidence of costs was not affected by the fact that a claimant was a minor who sued by his next friend. Accordingly, the fact that any settlement would require the court's approval was not of itself a relevant factor. There were two competing considerations in the instant case: C had acted reasonably throughout, but D was entitled to invoke the function and purpose of Part 36 in treating the 12

13 uncertainty as to C's developing condition and prognosis as simply one of the ordinary contingencies in litigation. Balancing those factors, the instant case was not exceptional and it would not be unjust for the normal order in relation to costs to be made. Notwithstanding the reasonableness of C's conduct, D was entitled to the normal costs protection of Part A more lenient approach was taken in Thompson v Bunce [2011] EWHC C brought proceedings under Part 8 to determine entitlement to costs following acceptance of a pre-action offer of damages from D arising out of the death of their mother. C sent a pre-action protocol to the D doctor who took 14 months to reply denying breach of duty. D made a Part 36 offer subject to payment of costs up to and including the settlement hearing which was eventually accepted. The issue concerned the interpretation of the word proceedings in rule The Judge found that proceedings should be given a wide meaning to include steps taken prior to the issue of proceedings. So pre-action costs were relevant. The Judge also considered the fact that court approval of damages was necessary, that the claim was not fully valued at the time of the offer and therefore the offer could not have been accepted within 21 days. See also PGF II SA v OMFS Co [2012] EWHC 83 (TCC) where an unreasonable failure by D to mediate led to a variation of the normal order to one of no order as to costs for the relevant period. Miscellaneous 16. A couple of slightly unusual Part 36 points were addressed in AB v CD & others [2011] EWHC 602 (Ch). C made a trade mark infringement claim against D. There was a liability only trial following which the court was asked to determine issues in relation to Part 36 offers. C argued that (1) it had made a valid Part 36 offer and so should receive the benefits available under r36.14 and (2) D's offer had not been a valid Part 36 offer because they had failed to supply the necessary financial data to enable it to make an informed assessment of the offer. In relation to validity, the High Court held that a request for a defendant to submit to 13

14 judgment for the entirety of the relief sought by the claimant could not be an offer to settle. C's offer could not be a valid Part 36 offer in relation to the quantum stage. It did not state any specific sum that C would be prepared to accept. Equally, the offer was not a valid Part 36 offer in relation to the liability stage: although the judgment had matched the offer, the offer had not made any concession of significant value (Roache v News Group Newspapers Ltd (1998) EMLR 161 CA (Civ Div) applied). Although it was good practice, and in accordance with the spirit of Part 36, for a party making an offer to provide the offeree with enough information to make an informed decision whether to accept it, failure to comply with that obligation would not in itself invalidate the offer. 17. Consideration was also given of the disclosure of Part offers when there has been a trial of a preliminary issue. Under the amended rules, it appeared that the existence of a Part 36 offer could not be disclosed, except where the parties agreed, until the conclusion of the second stage of a split trial. Accordingly, in nearly all split trial cases where an offer had been made, all questions of costs would have to be reserved to the conclusion of the second stage. However, it would often be desirable for the costs of the liability hearing to be dealt with at its conclusion. A possible solution might be, in appropriate cases, to construe the words "until the case has been decided" in r.36.13(2) as referring to the conclusion of the first part of a split trial. However, even then the court could only be told of the existence of the offer, so the question of costs would still have to be reserved. Offers in Assessment Proceedings 18. Although the decision in Carver v BAA plc [2008] EWCA Civ 412 was abolished by amendment to the CPR so that beating an offer by a penny is good enough under Part 36, Rangos v Secretary of State for Business Innovation & Skills & Anor (unreported, Ch D, Judge Cooke QC, 24 April 2012) suggests that its ghost still stalks assessment proceedings. C succeeded at trial and sought its costs from 14

15 D. Prior to assessment, D offered C c. 85,000 to settle costs which C refused. After a further year of litigation and a five day hearing, the master assessed costs at only 1,176 more than D's offer and ordered that C would be liable for costs of the detailed assessment from the date the offer was rejected. C appealed on the basis of Carver (where a settlement offer was beaten by only 51). It was held that there was no regime built into CPR r providing for "default" orders to be made if an offer was not beaten. An overall assessment of the circumstances was necessary. The master had correctly exercised his discretion under r and, accordingly the appeal was dismissed Costs Orders in Principle - Partial Success 19. In (1) Medway Primary Care Trust (2) Ashiq Hussain v Sebastian Marcus [2011] EWCA Civ 750; [2011] 5 Costs L.R. 808 C brought a clinical negligence claim against D1 and D2 which was valued at 525,000. C was awarded 2,000 for general damages at trial in respect of the fact that his unavoidable suffering had been somewhat aggravated. His primary case that amputation should have been avoided failed. The Court awarded C 50% of his costs which D1 and D2 appealed on the basis it was manifestly unjust and wrong as for practical purposes the claim failed. C argued that he could not have obtained his damages without going to court and effectively D1 and D2 were trying to achieve a more favourable result than they would have achieved if they had made an offer. The Court of Appeal held ((Jackson LJ dissenting) that the action was about the cause of the amputation and the costs were spent in advancing and defending that. D1 and D2 were therefore the successful parties and so the starting point should be a costs order in their favour. However, some reduction needed to be made to reflect their conduct and C s small success. D1 and D2 recovered 75% of their costs. 20. In Rolf v De Guerin [2011] EWCA Civ 78; [2011] C.P. Rep. 24 C claimed against D in relation to a building dispute. C made a Part 36 Offer to settle which was not accepted. At trial, the claim succeeded on one issue but C recovered less 15

16 than her Part 36 offer. The judge considered that D had been right not to accept the offer and ordered no order for costs up to the expiry of the period for acceptance of that offer and ordered that C pay D's costs thereafter. C appealed and the Court of Appeal held that the judge had erred fundamentally in his appreciation of the significance of C's Part 36 offer. The requirement in CPR r.44.3(4)(c) for the court to have regard to all the circumstances including an offer to settle which was not a Part 36 offer would make no sense if the offer to settle were to be held against the offeror. Exercising the costs discretion afresh, an order for no order for costs did substantial justice between the parties. The Court of Appeal also observed that D's rejection of C's offers to enter into settlement negotiations or mediation was unreasonable and conduct that ought to be taken into account under CPR r See also in this regard Morgan v Spirit Group, below. 21. A rather more robust approach was endorsed in Abbott v Long [2011] EWCA Civ 874; [2012] R.T.R. 1. C claimed for damages after an RTA, the bulk of which was a credit hire claim for 48,000. C succeeded at trial albeit with a 75% deduction for contributory negligence. However, the judge only awarded 8,600 in respect of the credit hire charges and made no order as to costs as she found that the credit hire claim had been grossly exaggerated. C appealed the costs order. The Court of Appeal held that C had to show the judge had erred in principle or her decision was perverse. The kernel of the judge's point was that a hire company, a serial litigant, should have in place a system to make sure claims were carefully conducted. Accordingly, C's conduct was blameworthy. C could not overcome the threshold of showing that the judge s decision was wrong and, accordingly, the appeal was dismissed. Fixed Uplifts 22. Virtually all CFAs in RTA, EL and Industrial Disease claims are governed by fixed staged uplifts. If the case concludes at or after trial uplift will be 100% 16

17 irrespective of conduct or refusal of a reasonable offer; Lamont v Burton [2007] EWCA Civ 429; [2007] 1 W.L.R The difference in solicitors costs between settling just before trial and going into Court can be enormous; uplift of 100% as against 12.5% in RTAs or 25% in EL cases. (The difference in Industrial Disease claims is more or less marked depending on the type of claim; in RSI and Stress cases is 100% whenever the case settles). 24. Amin v Mullings [2011] EWHC 278 (QB); [2011] PIQR P10 has now confirmed that Concluding at trial in this context almost always means after the case proper has commenced. The claim and counter-claim concerned a road traffic accident. Quantum of the claim was agreed a month before trial and then on the day of trial, before the hearing began, the parties agreed to a 50:50 split on liability. Only the quantum of D s counterclaim was outstanding at trial. However, the recorder held that C s claim had effectively "concluded at trial" within the meaning of r.45.16(1)(a) and r.45.17(1)(a) as it had settled on the day of trial and ordered D to pay a 100% uplift on C s costs in a claim concerning. D appealed. Slade J held that a claim that settled on the day of a trial but before the hearing had begun had not "concluded at trial" within the meaning of CPR r and r The fact that the counterclaim had been determined at trial did not mean that the claim should also be regarded as having been determined at trial. A court door settlement which concludes damages, interest and who will pay the costs does not qualify. 25. There remains however a significant ongoing controversy as to precisely what constitutes commencement for these purposes. This was explored in Pacasi v Rondeau (unreported, Kingston County Court 3 February 2012) (District Judge Stewart). The claim arose out of an RTA. Liability was eventually conceded and the claim was listed for a disposal hearing. However, a dispute arose at the disposal in respect of the late service of C s witness statement and her nonattendance at trial. D2 asked for an adjournment. C resisted but it was granted. D 17