Trial and error

Many involved in personal injury litigation and legal costs do not appear to be familiar with or understand the words/expressions ‘concludes at trial‘ and ‘concludes before a trial has commenced‘ as set out in the former CPR 45 Sections III – V and relating to fixed success fees in road traffic accident, employers’ liability and employers’ liability disease claims.

Recently, for example and in the context of an employers’ liability claim where the Claimant’s bill of costs laid claim to the maximum permissible success fee, I was met with the following ‘argument’ in response to my “misconceived” observation that the success fee ought to be just 25% (I have changed only the dates – the ‘gap’ between them remains the same):

This case was listed for trial to commence on the morning of Tuesday 23/04/13. The consent order was signed by the parties and filed at court on Friday 19/04/13. By that time, all the preparation and bundles had been completed such that all that was left to do was to attend the trial on 23/04/13. Accordingly, this matter did indeed conclude at trial. We are therefore sure that your clients can do better than that [offer].”

I kid thee not.

So, what are the rules and what are the authorities on this issue.

The rules:

The following assumes that the reader is aware that the former provisions of the Civil Procedure Rules 1998 revoked with effect from 01/04/13 are expressly maintained insofar as they relate to funding arrangements in cases where such funding arrangements were entered into before 01/04/13 – see CPR 48 and the attendant practice direction for full details.

The former CPR 45.15(6) provides inter alia that:

(b) a reference to ‘trial’ is a reference to the final contested hearing or to the contested hearing of any issue ordered to be tried separately;

(c) a reference to a claim concluding at trial is a reference to a claim concluding by settlement after the trial has commenced or by judgment.

Such definitions relate to the provisions for prescribed success fees at the former CPR 45.16 and 45.17 (prescribed success fees for solicitors and counsel respectively in road traffic accident claims), CPR 45.21 (prescribed success fees in employers’ liability claims) and CPR 45.24 and CPR 45.25 (prescribed success fees for solicitors and counsel respectively in employers’ liability disease claims). The rules relating to alternative success fees in prescribed circumstances (e.g. in road traffic accident claims with a value in excess of £500,000 – see the former CPR 45.18) are beyond the scope of this article.

The practice direction supplementing the former CPR 45 is entirely silent in relation to CPR 45.15(6), rather suggesting that no further information/guidance was necessary. Indeed, the wording of the rule set out above appears to be perfectly clear and in need of no further clarification. Not so, as there has been a slew of decisions on the subject.

The authorities:

Dahele -v- Thomas Bates & Son Ltd [2007] EWHC 90072 (Costs) was a matter concerned with prescribed success fees in an employers’ liability disease claim. There is an unusual aspect of this case in that the Claimant sadly passed away prior to the conclusion of the proceedings and that, in anticipation of such an event, the Claimant’s solicitors diligently arranged for the Claimant’s evidence to be ‘tested’ at his home prior to his death. Not a ‘trial’ as such (there being no judge present being one fact of worthy note) but nevertheless an opportunity for the Claimant to give his evidence and for him to be cross-examined thereon on behalf of the Defendant. Other than that, the most salient fact of the case relative to the subject matter of this article is that the parties were able to reach a negotiated settlement in respect of quantum (liability having been determined some months previously) at court on the first day of the quantum trial and before the case was called on by the trial judge.

In short, as set out in the Defendant’s points of dispute, the Defendant challenged the Claimant’s claim for a success fee of 100% on the following grounds:

The present case settled at court immediately prior to the commencement of the final hearing dealing with quantum. No trial took place, and it is therefore submitted that the fixed success fee applies and the defendant offers no more than 27.5 per cent in respect of the same.

In reply, the Claimant averred:

The Claimant’s evidence was taken on commission at his home, during his lifetime, where he was subject to examination and cross examination. The Defendant offered terms of settlement at the doors of the court on the morning of the trial and the matter was mentioned to the learned trial judge.

Master Haworth, Costs Judge, stated the (relevant) issues to be determined thus:

1. whether the taking of the Claimant’s evidence on commission on 5 July 2006 constituted the start of a “trial” for the purposes of Part 45;

2. if not, whether the final settlement on the day of the quantum hearing was a conclusion “at trial” for the purposes of Part 45.

Master Haworth found for the Defendant on the first issue, despite the ingenious submissions of Jeremy Morgan QC (now retired and hugely missed in the costs world). But on the second issue, the Claimant’s submissions found favour with Master Haworth who held (inter alia and I accept that the following are selective quotes):

22. On 7th September 2006 the date fixed for the hearing the Claimant’s solicitor (Harminder Bains) attended at court together with the Claimant’s expert witnesses and the Claimant’s counsel. Negotiations took place at the behest of the Defendant’s barrister and after several hours of negotiation it was agreed the Defendant pay the Claimant the sum of £400,000 and in addition pay CRU at the sum of £3,950, together with the Claimant’s costs. Settlement was achieved at approximately 11.10 am and the parties attended before the judge to obtain his approval to the agreement reached between them.

24. In those circumstances I accept the submission of Mr Morgan QC that a case “concludes at trial” if it settles on the day fixed for trial and Rule 45.25(1)(a) and 45.24(1)(a) must be interpreted in that way.

26. In my judgment in this case the court remained seised of the matter until approval of the settlement reached between the parties was given by the judge hearing the case. Until that time the Judge (had he been so minded) may not have approved the settlement and sent the parties away to renegotiate. The claim itself remained live on the day of the trial. Agreement was not reached until after the time for commencement of the trial and in addressing the court with regard to the agreement reached by the parties the case had begun. In those circumstances I find that the Claimant’s solicitors and counsel are entitled to the percentage increases referred to in Rule 45.24(1)(a) and 45.25(1), the percentage increase to be allowed being 100 per cent to both solicitor and counsel.

So, in short, Master Haworth was persuaded that Dahele concluded at trial on the basis that the agreement was reached on the day the trial was scheduled to begin, after the time at which the trial was scheduled to begin and despite the trial judge having not called the matter on or either party having begun even the briefest of openings. Further of course, Master Haworth held that the case (trial) had begun by reason of the court being addressed with regard to the agreement reached.

Sitapuria -v- Khan (Unreported: HHJ Stewart QC Liverpool County Court 10/12/07) was decided some seven months or so after Dahele and concerned the appropriate, prescribed success fee in a road traffic accident claim. Similar to Dahele, Sitapuria was concerned with a claim which was, in simple terms, disposed of by agreement on the day of trial but without the trial being called on.

The parties’ respective positions are succinctly set out within the judgment of HHJ Stewart QC:

8. Mr. Turner, who appears for the Defendant, says that the matter is unequivocal on the rules; that in order for there to be a trial there has to be a final contested hearing, or the contested hearing of any issue ordered to be tried separately. By ‘contested’ that means there has to be some dispute and the case has to be opened; and that that also is entirely consistent with, and explained by, Rule 45.15(6)(c).

9. Mr. Ralph, on the other hand, says that there has been a settlement here, and that the trial commences on the day that the matter is listed for trial, and is there fixed before the Judge, and if at that stage the parties settle then the trial has commenced. Therefore, to take 45.16, the matter has ‘concluded at trial’ and has not ‘concluded before a trial has commenced’.

At paragraph 10 of the judgment, HHJ Stewart gives short shrift to the Claimant’s case:

On the reading of the words Mr. Ralph’s submissions seem to me to be incorrect. I say that because the definition section, under 45.15(6)(b) clearly refers to the words ‘contested hearing’. Of course, if the trial commences – by which, in any normal sense of the word, it means that the case has been called on and has at least begun to be opened as a contested hearing – and the parties then settle the matter, then the trial has commenced and either that settlement which takes place after the case has been called on, and therefore has commenced, or judgment of the court in those circumstances entitles both solicitors and counsel to 100 percent. However, it seems to me that the trial has not commenced in the sense that there is no contested hearing which has commenced, if the parties conclude a settlement prior to the case being called on as a contested hearing and the opening has commenced of such a contested hearing. That is where Rules 45.15(6) and 45.16 seem inexorably to lead.

Further, HHJ Stewart QC goes on to express his disagreement with the decisions of Master Haworth in Dahele, stating, for example:

17. The learned Master, in para. 27, said that he was fortified by the overriding objective which encourages the early settlement of cases, and said that the rules are designed to encourage the early settlement of cases, and not to leave matters until the door of the court when the trial date has been reached. I will leave that on one side because it seems to me that the interpretation of the rules cannot bend to such a perception of the overriding objective and that if concluding at trial does – as I find it does – mean that the trial must have commenced in the sense that a contested hearing must have commenced, then that is the end of the matter.

Thenga -v- Quinn [2009] EWCA Civ 151 saw this issue revisited – but with something of a twist: it concerned a proposed second appeal, against an order of HHJ Tetlow sitting at the Bury County Court who had overturned, on the Defendant’s first appeal, a decision of a Deputy District Judge who had, in short and in essence, held that a hearing at which was conducted a summary assessment of the Claimant’s costs, and being a hearing originally listed as a disposal hearing, constituted a ‘trial’ – or more accurately, “the final contested hearing“.

That takes a little understanding! In brief, liability in that road traffic accident claim was swiftly conceded but the question of damages was less easy to resolve. Proceedings were issued and the matter trundled towards an assessment of damages hearing. However, damages were agreed in advance of that hearing, as was the incidence of costs, but the disposal hearing was used solely for the purpose of assessing the Claimant’s costs (an arguably “irregular” course of events as Wilson LJ observed).

The submissions advanced on behalf of the Claimant, in seeking leave to present full argument to the full Court, were ingenious. Despite such ingenuity however, they were given even shorter shrift than those in Sitapuria. In refusing permission to appeal, Wilson LJ said:

My view is that it is plain beyond serious argument that, in drafting Rule 45.15(6)(b), the rule-makers have not thrown the conventional notion of a “trial” to the winds; and that the “final contested hearing” relates to the substantive claim, albeit (probably and as the circuit judge appears to have concluded) including a hearing referable to a disputed claim for an award of costs in principle, i.e. subject to quantification.

But it is the following, at paragraph 15 of the judgment in Thenga, that is of particular relevance to this article given the reference, however much in passing such reference might appear to be, to both Dahele and Sitapuria:

Nor have I been assisted by the references by Dr Friston, and to some extent this afternoon by Mr Ralph, to conflicting decisions, namely by Master Howarth, a costs judge of the Supreme Court, on the one hand, and by His Honour Judge Stewart QC in the Liverpool County Court, on the other, as to whether the announcement to the court of a settlement on the day fixed for the trial of the action but prior to the opening of the contested case to the court means that the claim concluded at trial or before a trial has commenced. That seems to me to be in principle a much nicer – by which I mean a much finer – point than the point raised in the present proceedings.

The SCCO revisited this issue in March 2009 when Master Simons gave judgment in Hosking -v- Smallshaw. Hosking concerned a high value claim for damages arising out of a road traffic accident and the case was subject to the former CPR 45 Section III. The case was listed for week-long trial to commence on 28/01/08 but by the morning of the first day of trial the parties had agreed a settlement and the same was subsequently embodied in an order by consent on 28/01/08.

The consent order provided for inter alia periodical payments but did not make clear whether such payments were to be made monthly or annually. The parties were unable to agree on this issue such that some three months later, an application to determine the frequency at which periodical payments should be made was issued on behalf of the Claimant. That contested application was heard in May 2008 and was decided in favour of the Claimant.

The Claimant’s bill of costs laid claim to substantial sums by way of success fees of 100% in respect of solicitors’ costs and the fees of leading and junior counsel. It was submitted on behalf of the Claimant that the hearing in May 2008 constituted a contested hearing and thus a trial within the meaning of the former CPR 45 (it having been conceded that the hearing in January 2008, dealing with the aforementioned consent order, was not a trial). For the Defendant, it was argued that the hearing in May 2008 was not a trial but merely a part of finalising the detail of the compromise reached.

Master Simons agreed with the Defendant:

In my judgment the hearing of the Claimant’s application on 15th May 2008 dealt with the fine tuning of the settlement agreed between the parties. The Order of 28th January 2008 clearly recited the terms of settlement and in paragraphs 4 and 9 of the Order clearly anticipated that there would be efforts on both sides to endeavour to agree the actual wording of the Order and, by implication, that if agreement could not be reached as to the final wording of the Order, the parties could refer back to the Court. Liability had been agreed and quantum had been agreed. The agreed statement of facts presented to Mr Justice Royce at the hearing on 15th May 2008 refers to “the date of settlement of his claim” and that “his claim has been resolved by way of an immediate award of lump sum damages…”. Furthermore, in their letter to Mr Justice Roderick Evans of 16th April 2008 the Claimants made clear that the parties had reached a compromise. All these factors are indicative of the fact that the claim had concluded before the trial had commenced.

Whilst I accept Mr Wilkinson’s submissions that the Court of Appeal in Lamont v Burton commented that the price of providing the certainty contained in Part lll of CPR 45 could be some anomalous results, it seems to me that it would be absurd for solicitors and counsel who, justifiably in the context of this high-value case have charged high basic fees, should be entitled to double their basic fees in sums in excess of £150,000 as a result of their seeking to obtain clarification from the court in respect of one aspect of an agreed Order, in circumstances where they have at no time been at any risk of not being paid their basic fees.

Gandy -v- King [2010] EWHC 90177 (Costs) saw Master Haworth troubled once more with this issue – albeit, it must be noted, not in the context of CPR 45 and on which basis the Master promptly distinguished the decision in Sitapuria, and indeed his own decision in Dahele, as the index road traffic accident occurred in 2000 (the former CPR 45 Section III does not apply in respect of road traffic accidents which occurred before 06/10/03). In Gandy, it was a provision for staged success fees in the CFA between the Claimant and his solicitors which gave rise to the issue at hand, namely:

The success fee is set at 100% of basic charges where the claim concludes at trial; or 52% where the claim concludes before the trial has commenced. In addition, 0% relates to the postponement of payment

Junior counsel for the Claimant, whilst also not bound by the provisions in the former CPR 45, entered into a CFA with the Claimant’s solicitors which mirrored the provisions of the former rules.

In short, the case had been listed for a quantum-only trial in November 2008 after efforts to reach an agreement had proved fruitless. Master Haworth makes it clear that the case was fully prepared for trial but a settlement was subsequently reached, subject to approval by the judge (the Claimant being a patient), on the day fixed for the trial. The following recital from the transcript on the first day of the listed trial is informative:

Mr Martin: May it please, Your Lordship, I appear for the Claimant with my learned friend, Mr Miles. My learned friends, Mr Jefferies and Mr Hussey appear for the Defendant, My Lord, I am sorry to say, I have not been true to my word in the sense that I am not ready to start at this moment. Matters have been raised which require careful analysis in a complex case, where advice other than those present in the building, needs to be accessed. It is taking time. But I am determined to start at 2.00pm. So, one way or another, My Lord, I can ensure that we will be ready at 2.00.

Adjourned for a short time

Mr Martin: My Lord, thank you again, for allowing us time, and I am happy to say that it is being used usefully, and I can tell the Court that the parties themselves have compromised the claim.

It was submitted on behalf of the Claimant that the provisions of his solicitors’ CFA (set out above) did not mirror the provisions of the former CPR 45, the absence of the words ‘contested hearing’ in the CFA was highlighted and the court was urged that the making of ‘an opening’ (of the case) should not be read into those provisions. The Claimant also relied upon the dicta of Master O’Hare in Christine Cutler -v- J E Stephenson & Co [2008] EWHC 3622 (QB), that the word ‘trial’ “describes a core event at which matters will be finally determined” (please be careful using that citation – it relates to the judgment on appeal from Master O’Hare, of Blair J, and the judgment at first instance does not appear to be available). The Claimant also referred to the facts that the matter was fully prepared for trial and that the parties had attended court on the day for the purpose of a trial, such that the case therefore did conclude at trial and that to deny this construction would “distort the plain and ordinary meaning of these words, contrary to the overriding objective“.

For the Defendant, it was simply averred that a trial did not begin and that the Claimant was not even ready for a trial to commence – as set out in the recital from the transcript above. Master Haworth agreed with the Defendant, holding as follows:

To my mind the word “trial” denotes an examination and determination of issues between the parties by a Judge, or some other tribunal“;

… it is clear from the transcript of the exchange between Mr Martin (Counsel for the Claimant) and Mr Justice Blake, that the trial did not start“;

An approval settlement in my judgment does not meet the criteria of a “trial”“; and

The 3 November 2008 was the date fixed for trial. This in my judgment was not a “core event” on the basis that the claim was compromised. Neither do I accept that the subsequent approval settlement on 7 November 2008 was a “core event”. It was an agreement put before the judge for approval: a procedural matter.

NB The judgment in Gandy goes on to consider the reasonableness of the various success fees claimed (the same not being prescribed) and contains useful, general information and guidance on the subject (notably in high value cases where liability is not at issue and with reference to the Court of Appeal’s judgment in C -v- W [2008] EWCA Civ 1459).

Amin & Hussain -v- Mullings & Royal Sun Alliance [2011] EWHC 278 (QB) is another case in which the underlying road traffic accident claim concluded on the day fixed for trial. The parties’ respective claims were entirely modest in value but each side blamed the other for the accident. Quantum of the entirety of the Claimants’ claims was agreed in principle but the issue of liability was listed for a fast-track trial on 29/10/10. In addition, the quantum of the hire charges element of the First Defendant’s counterclaim remained unresolved.

The trial judge Mr Recorder Willetts’ judgment begins:

Although the matter was listed for trial today on all the matters liability has been compromised on a 50/50 apportionment. I am told that of the heads of damage claimed by both parties to their respective claims, Mr Mullings having counterclaimed for his losses, have been resolved save for the outstanding matter of hire of vehicles by Mr Mullings pending payment of his write-off value for his vehicle.

The First Defendant’s counterclaim in respect of hire charges was thereafter resolved following argument but it remained that the Claimants’ claims were resolved by consent before the trial was begun and the counterclaim was dealt with. And so, while it was not in contention that the Claimants were responsible for the Defendants’ costs of the counterclaim inclusive of 100% success fees it was the Defendants’ case that the Claimants’ success fees were prescribed at 12.5% in the above circumstances. The trial judge held that:

8. It seems to me that the definition of “at trial” must include the time or date when the trial is fixed to take place, when parties attend, as they have done in this case expecting to give evidence at a trial, when lawyers and advocates attend expecting to present their respective cases before a judge for hearing. As night follows day, in my judgment, it must also include the negotiations that will inevitably take place and quite rightly should take place on the day of the trial to either settle the matter outright or narrow the issues and assist the court in that regard.

10. It seems to me that rule 45.16(1)(a) must include settlement being achieved on the day that the trial is due to take place, at trial, including, in my judgment, negotiations on the day and parties attending prior to the matter actually being heard before the judge. It seems to me that to find otherwise would, as I have indicated, fly in the face of the overriding objective to deal with the matter fairly. Accordingly, it is my judgment that the Claimant is entitled to a 100 per cent uplift on the additional liability and I find that the Claimant’s claims did conclude at trial. Accordingly, the Claimant is also entitled in respect of counsel fees under CPR 45.17(1)(a) to a 100 per cent uplift on counsel’s fees for the same reasons.

The Defendants appealed. Citing many of the cases set out above, counsel for the Defendants averred that the trial judge had erred in failing to distinguish between the claims of the Claimants and the counterclaims of the Defendants and had erred in respect of the definition of ‘trial’. Inevitably, counsel for the Claimants relied upon Master Haworth’s decision in Dahele.

Slade J held, at paragraph 32:

The learned Recorder erred in holding that ‘at trial’ is not defined in CPR 45. It is clear from CPR 45.15(6)(b) that ‘at trial’ means at a contested hearing. As is clear from CPR 45.17(1)(a) and (b)(i) the rules recognise a distinction between a trial and the date fixed for the commencement of the trial. Further, the rules recognise a distinction between the conclusion of a claim after and before a trial has commenced. Settlement before a trial commences and conclusion by settlement after a trial commences could both occur on the date fixed for the trial. The trigger for entitlement to a 100% uplift in fees is not a settlement on a particular date but a settlement or conclusion after a trial, defined as a hearing, has commenced. It would be straining the use of language to say that a trial has ‘commenced’ after the beginning of the day fixed for trial although the hearing has not yet started.

A startlingly simple and entirely correct statement of the law, if I may respectfully say so. Her judgment goes on to examine the earlier decisions referred to above and (as with any judgment) should be considered in full. For present purposes however, it is sufficient to say that the construction used by Master Haworth in Dahele was considered to be impermissible and was therefore not followed, that HHJ Stewart QC’s judgment in Sitapuria was approved and that the Claimants’ success fees, upon the court being satisfied that the claims and counterclaims were separate for all relevant purposes, were reduced to 12.5% (solicitors) and 50% (counsel).

Finally, there is the more recent decision of Master Leonard in the matter of Loizou -v- Gordon and Patsias [2012] EWHC 90221 (Costs), a spat between the two Defendants for a change! Briefly, the Defendants blamed each other in respect of the underlying road traffic accident such that ultimately there was to be a split trial in respect of liability and quantum, with a trial in respect of liability listed in July 2011.

On the morning of the trial, the First Defendant and his supporting witness failed to show up at court. The trial was called on before the recorder and after counsel for the Claimant introduced the parties’ advocates he gave way to counsel for the First Defendant who endeavoured to secure an adjournment of the trial in light of his lay client’s absence. The trial judge refused to adjourn the trial to another day but did grant a short period of time for stock/instructions to be taken, which resulted in judgment on liability being entered against the First Defendant by consent. As a result, the claim against the Second Defendant was dismissed and the First Defendant was ordered to pay the Claimant’s and Second Defendant’s costs (following assessment/agreement of damages as between the Claimant and the First Defendant). The Claimant’s damages were subsequently agreed by the First Defendant whereupon the Second Defendant presented his bill of costs to the First Defendant – complete with a success fee of 100%.

The judgment of Master Leonard refers to all of the above cases (save Hosking). It was submitted on behalf of the First Defendant that a ‘trial’ occurs only once the contest on a substantive claim is opened (commenced) as a contested hearing, for an examination and determination of the (substantive) issues i.e. that is when the risk (reflected by the higher success fee) crystallises. It was further argued that if all that is required to trigger the 100% success fee is that the parties open the case or the parties have an argument on what can or cannot be adduced as evidence in the substantive claim then claimants would have a significant incentive to come before the court on all manner of interlocutory matters in order to trigger the higher success fee. In the instant matter, there was no opening of the case and no presentation of evidence; the case was merely called on and then subjected to the above-described ‘sideshow’ in respect of the First Defendant’s non-attendance and the request for an adjournment.

Counsel for the Second Defendant highlighted the common denominator in the decisions in Dahele, Sitapuria, Gandy and Amin, namely that they involved situations where the claim had settled before coming before the trial judge, who was called upon (if at all) only to approve an order of settlement. That was not so in the instant matter and, relying on Thenga, the Second Defendant averred that on any proper analysis of the facts and the relevant provisions, he was on the right side of the line drawn by the rule-makers. Such submissions were extended via a description of the events on the morning of the trial, arguing that the trial had commenced upon counsel for the Claimant getting to his feet at the outset and further, that the trial was subsequently restored after the trial judge had given judgment on his refusal of the application for an adjournment and whereupon it was confirmed that the First Defendant was unable to call any evidence to support his pleaded case (or defend that of the Second Defendant). The short adjournment to take stock/instructions changed nothing and the Second Defendant urged Master Leonard to uphold the 100% success fee and his clear and straightforward case which required no “artificial construction of the rules“.

Master Leonard agreed with the Second Defendant, including in respect of the “most significant distinction” between the instant matter and the earlier authorities, urged upon him by counsel for the Second Defendant and referred to above, that the question of liability was still contested when the case was called on before the trial judge. Significantly, Master Leonard held that the rules refer to the commencement of the substantive hearing of an issue or issues that, not having settled, are still contested; they do not refer to the stage that the hearing has reached. Further, the Master held that “by definition a contested hearing must ‘commence’ before evidence is heard or submissions made. It does not become a contested hearing only when that happens“.

Helpfully, Master Leonard also referred specifically to HHJ Stewart QC’s judgment in Sitapuria:

HH Judge Stewart took the view that a contested hearing commences when it opens (or just begins to open). Accordingly the line, as Mr Simpson submits, is crossed as soon as parties’ representatives appear before the judge in a contested hearing.

The Second Defendant’s 100% success fee was therefore allowed.

In the light of the above authorities, persuasive or otherwise and for the purposes of the fixed success fees (if not other cases not subject to fixed success fees but in which staged success fees are provided for by retainer), the following, very broadly stated principles can be drawn:

* Detailed or summary assessments and approval hearings are not trials or contested final hearings for this purpose.
* Assessment of damages hearings are.
* Reaching agreement on all issues on the court premises and then appearing before the trial judge to have that deal embodied in a consent order does not amount to a trial.
* Returning to court, to perfect or clarify an agreement or compromise previously reached, will not (necessarily anyway it seems) amount to a trial or contested final hearing.
* For a trial to have commenced, and thus for a case to conclude at trial, the case must be called on and opened (however briefly).

Further, I think it prudent to believe that if parties to a claim are able to resolve issues of liability, causation and quantum between themselves but remain at odds as to the incidence (i.e. not merely quantum) of costs, then putting the remaining question before the court may well be deemed to be a trial / contested final hearing (as referred to obiter in Thenga).

Excellent. Now, going back to the top of this piece and the reason why I started writing it: that case was settled four days before the trial – need I say any more?