The Stand Alone Breach

Before I settle to my main task of the week, a large value cost appeal, here’s an update on a regularly occurring issue – stand alone breaches in the Magistrates Court.

The issue revolves around the meaning of “heard together” in Specification Part B 10.69 of the contract. We have always argued for a literal one: the matters have to be heard on the same day, in the same hearing for it to become a single fee. When the breach hearing is genuinely stand alone a separate fee is payable.

We have appealed this on a number of occasion and on the last the Contract Manager sat on our representations pending an outcome of another appeal under his purview. The ICA in that matter found as follows.

“I do find that for Specification Part B 10.6 9 to apply as the Appellant solicitors indicate the matters would need to “touch”.  i.e. there must be at least one hearing where both the breach and the theft matter were listed at the same time.  Obviously if the cases had come together and been dealt with at the same time then this would have been one fee but in this particular case I would find that there are two separate fees to be allowed”

Such ICA findings are no surprise, indeed this has happened before. Back in 2010 we won an ICA appeal on the point and a contemporaneous, identical finding, was reversed by the CM on that basis.

Later, with the change to CBAM guidance on the point (S. 6.6.6) these 2 cases became those anonymously referred to in the definitive guide to such matters “Keogh on Criminal Costs”. It is from here that the concept of the “need to touch” comes. We have used this experience to win representations on a number of occasions inbetween.

An ICA finding is not binding on the LAA however they have chosen not to use their right to seek a Point of Principle to clarify the point. This probably demonstrates that they were not that confident of their position in the first place. We do however now have significant dissonance between CBAM guidance and the rest of the world, which one would think they were duty bound to clarify.

I suspect however that the necessary amendment to CBAM will not be forthcoming and there will be another near identical post to this in the future.

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