C (acting by her litigation friend JF) v W: CA 19 Dec 2008

The court considered the proper basis for a success fee payable on a conditional fee agreement where, when signed, the defendant had already admitted liability. The claim was by a woman after being injured in a car driven by her brother. By the time her second form of solicitors took over the case the defendant had admitted liability. The courts reduced the success fee first to 70% and then to 50%. The defendants sought a further reduction.
Held: The success fee must reflect a reasonable and rational assessment of the risks facing the solicitor at the time when the agreement was entered into. The issue of liability was not the only risk faced by the solicitors. The solicitors had not however calculated the fee correctly. The chance of success remained very high, justifying a base uplift of no more than 5%. The larger volume of work required by a more complex case did not increase the risk to the solicitor. The right way to reflect the increased risk in more complex cases was in the chances of success. Nor was it correct to increase the fee to reflect unidentified party and insurance issues. In this case those did not apply. It was incorrect to adjust the premium to reflect a risk that the claimant might be insolvent and unable to pay costs if he withdrew his instructions. The solicitors may have been better using a variant of the two stage success fee discussed in Callery.

Arden LJ, Thomas LJ, Moore-Bick LJ, Master Hurst
[2008] EWCA Civ 1459
Bailii
Courts and Legal Services Act 1990 58, Access to Justice Act 1999 27(1), Conditional Fee Agreements Regulations 2000
England and Wales
Citing:
CitedCallery v Gray, Russell v Pal Pak Corrugated Ltd (No 1) CA 18-Jul-2001
Claimants in modest, straightforward personal injury claims cases should have re-imbursed to them by the defendant, the cost of after the event insurance, if necessary by costs only proceedings. The solicitor’s success fee should also be recovered. . .

Cited by:
CitedCoventry and Others v Lawrence and Another SC 22-Jul-2015
The appellants challenged the compatibility with the European Convention on Human Rights of the system for recovery of costs in civil litigation in England and Wales following the passing of the Access to Justice Act 1999. The parties had been . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Updated: 09 November 2021; Ref: scu.278974