In Mendes v Hochtief (UK) Construction Ltd [2016] EWHC 976 (QB), the High Court found that the fixed trial advocacy fee is recoverable where a claim is settled on the day of trial, but prior to the trial beginning.

The Appellant appealed against a refusal to award a trial advocacy fee under the fixed costs regime.

The claim was originally issued under the Pre-Action Protocol for Low Value Personal Claims in Road Traffic Accidents, so fixed costs set out in CPR 45 Pt.IIIA applied. The parties reached settlement on the day of trial by consent order, awarding the Appellant damages and costs.

The Recorder refused to award the advocacy fee listed under CPR45.29C Table 6B Section C on the basis that the sum was unrecoverable as the case had been settled before trial commenced.

The Appellant argued Section B of Table 6B in CPR r.45.29C was inapplicable as settlement did not take place before the date of trial and so Section C should be used. It was argued in any event that the trial had begun and the fee was therefore recoverable.

The High Court allowed the appeal and found that Section B of Table 6B contained a typographical error and should have read "on or after the date of listing but prior to the date of trial". Accordingly, Section B was not applicable as the case had not settled prior to the date of trial.

It was also found that the case was disposed of at trial, by way of settlement rather than judgment. It was noted, in the interests of justice, that advocates should not be financially penalised for negotiating settlement at the door of the court.