This was an appeal from an Oral Review of a Provisional Assessment.  The appeal was limited to two items;

• Counsel's abated brief fee for trial and 

• Counsel's skeleton argument.  

The costs were governed by SIIIA of CPR 45.   The defendant made a Part 36 offer just over 21 days before trial.  There was an order for skeleton arguments to be exchanged two clear days before trial, so the relevant period of the offer included the due date for the skeleton arguments.  The claimant accepted the defendant's offer the day before trial, and sought their costs of the ordered skeleton argument and abated brief fee.  At first instance the court had disallowed counsel's fee for drafting the Particulars of Claim, but allowed the fee for the skeleton argument and abated brief fee.  The defendant appealed.

The claimant was represented by Ben Williams QC and the defendant by Sarah Robson.  Mr Williams argued that the brief had to be delivered before the day of the trial, it would have been unreasonable not to have done so.  He sought the abated brief fee not under Table 6B section D as that is clearly only payable on the day of trial which had not been reached but rather under CPR 45.29I(2)(h).  He further argued that the defendant could not complain where they had made an offer open for acceptance for 21 days where those 21 days included the due date for skeleton arguments - there was nothing wrong with waiting to see what arguments were going to be presented before deciding to accept the defendant's offer.  He also argued that the 'swings and roundabouts' argument no longer applied in the post-LASPO world.

The hearing was adjourned part heard pending the decision in Cham v Aldred.  Once that decision was published, the claimant then argued that the trial advocates' fee was not earned under Table 6B, as that fee is only earned on the date of trial itself, but rather simply as a disbursement and was recoverable under ss(h).  There was therefore no duplication of the trial advocacy fee in Table 6B.  The defendant argued that fixed costs were designed to give certainty and the trial advocacy fee was clearly intended to only be recoverable inter-parties once the day of trial had been reached.  Likewise the skeleton argument was part of the trial preparation and should similarly be disallowed.

The judge preferred the submissions of the Appellant/Defendant, finding that the costs of preparing for trial included preparing the skeleton argument and that stage had simply not been reached.  It was therefore not payable, and the appeal was allowed.