Reducing the Claimant’s 65% success fee on appeal to 12.5% Mr Justice Martin Spencer analyses the proper approach to the assessment of risk in a Pre LASPO CFA case where liability has been admitted and there has been no Part 36 offer of settlement.
“Armed with an assessment of these two governing risk factors, the solicitor is then in a position to take an informed view as to the appropriate success fee. Take, for example, the case where the solicitor considers that the timing of a Part 36 offer will be when £300,000 of costs have been incurred and £100,000 remain to be incurred. 25% of his costs are likely to be at risk. Supposing he considers that the chance of him getting it wrong and advising his client to reject a Part 36 which should be accepted is 20%, then his risk is 20% of 25%, namely 5%. The prospects of success are accordingly 95% and that would justify a percentage increase of 5% according to the ready reckoner. If the solicitor considers the case so difficult to call that the chance of him getting it wrong is 50%, then his risk is 50% of 25%, namely 12.5% and the prospects of success are therefore 87.5% which would justify a percentage increase of 14.29%.” [35]
This was an appeal against a decision of District Judge Searl in the Newcastle upon Tyne District Registry of the High Court dated 23 May 2017 whereby she ordered that the success fee of the Claimant’s solicitor and of counsel be assessed at 65%.
The costs assessment came before District Judge Searl on 23 May 2017.
The Claimant conceded that the 100% success fee where the case settled in the three-months period before trial could not be sustained or justified but argued that a 67% success fee should be allowed equating to a 60% chance of recovering costs under the “ready reckoner”.
For the Defendant it was argued that the Claimant, having the burden of proof, was unable to justify a success fee above 20% and that the success fee should therefore be fixed at 12.5% pursuant to statute.
District Judge Searl rejected the claim for 67% success fee, but awarded a success fee of 65%.
She was referred to the leading authority of C v W [2008] EWCA Civ 1459.
The Claimant argued that C v W should be approached on the basis that:
“It is not a template for all such matters, that there is scope for cases falling outside the usual and further that this is such a case.”
DJ Searl accepted the submissions stating:
“I am satisfied that there is scope within the leading authority for matters beyond the usual range of claims conducted by experienced litigators to be considered attracting a success fee outside the fixed success fee regime of CPR 45. I am satisfied on the facts of the matter as I have detailed [that] this might be such a case. I come to that point further in my judgment, but on the first point, I am satisfied that on the basis of C v W there is scope for determining extraordinary and unusual or extremely complex matters beyond the fixed success fee of CPR45.”
Her decision and reasons are to be found in paragraph 30 of her judgment where she stated:
“I am not satisfied that either the 100% success fee originally claimed … is justified. I am satisfied that distinction can be drawn on the facts of this matter between it and the authority cited to me, to which I had regard in their entirety, such that 100% success fee cannot be justified. Concessions made by the Receiving Party that a 67% success fee should be allowed. I am not satisfied that is an appropriate success fee, having regard to the features of this case, both in respect of the weighing of liability against causation and the impact upon Part 36 offers. I am satisfied that the appropriate success fee to allow and I do allow is one of 65%.”
The Defendant appealed against this order.
The relevant rules from the CPR as at the time the CFAs were entered into were as follows:
“45.18 Application for an alternative percentage increase where the fixed increase is 12.5%
(1) This rule applies where the percentage increase to be allowed –
a. In relation to solicitors’ fees under the provision of rule 45.16; or
b. In relation to counsel fees under rule 45.17,
is 12.5%.
(2) A party may apply for a percentage increase greater or less than that amount if –
a. The parties agree damages of an amount greater than £500,000 …
(3) In paragraph (2), a reference to a lump sum of damages includes a reference to periodical payments of equivalent value.
(4) If the court is satisfied that the circumstances set out in paragraph (2) apply it must –
a. Assess the percentage increase; or
b. Make an order for the percentage increase to be assessed.
45.19 Assessment of the alternative percentage increase
1) This rule applies where the percentage increase of fees is assessed under rule 45.18 (4).
2) If the percentage increase is assessed as greater than 20% or less than 7.5%, the percentage increase to be allowed shall be that assessed by the court.
3) If the percentage increase is assessed at no greater than 20% and no less than 7.5% –
a. The percentage increase to be allowed shall be 12.5%; and
b. The costs of the application and assessment shall be paid by the applicant.”
In C v W Moore-Bick LJ referred to the “ready reckoner” table used to calculate the basic success fee, saying:
“17. The real difficulty in this case lay in clause 5 and in assessing the risk that the solicitors might lose the right to recover part of their fees as a result of Mrs C’s failure to beat a Part 36 offer which she had rejected on their advice. Given that the CFA was entered into before proceedings had been commenced, that called for an analysis of several contingencies, each of which was difficult to assess individually, and which together made the task almost impossible. They included the chance that a Part 36 offer would be made, the chance that it would be made at an earlier or later stage in the proceedings, the chance that they would advise Mrs C to reject it, the chance that she would accept their advice and the chance that, having rejected the offer, she would fail to beat it at trial. Some of these might be assessed with a degree of confidence: for example, one could confidently predict in the case of this kind that a Part 36 offer would be made at some stage. One might also predict, though perhaps not with quite the same degree of confidence, that Mrs C would reject such an offer if her solicitors advised her to do so. The timing of an offer was more difficult to predict, but was potentially of some importance because any fees earned by the solicitors after its rejection would be at risk; fees earned up to that point would be secured. The chance that Taylor Vinters would advise Mrs C to reject an offer which she subsequently failed to beat trial would be difficult to assess, but one would not expect highly experienced solicitors practising in this field to differ very widely in their assessment of the bracket in which an award would be likely to fall, provided they had access to the same information. … the task facing Taylor Vinters in May 2001 was to assess, as best as they could, the risk of losing part of their fees for reasons of that kind, and then expressing that as a percentage of the total fees likely to be earned to trial. Only by doing so could they calculate a success fee expressed by a percentage uplift on the whole of their profit costs. However, the explanation form shows that they did not attempt to grapple with that task and indeed I doubt whether they had the means of doing so in any reliable way.
18 … however, when it comes to the detailed assessment of costs the receiving party must normally be able to justify as reasonable any success fee he seeks to recover from the paying party. In my view the Cost Judge cannot refuse to award an [sic] success fee simply on the grounds that the difficulty of assessing the risks made it unreasonable to enter into a CFA at all; but if the receiving party cannot show that the success fee has been calculated in a way which reasonably reflects the risks that have been assumed, he will not be able to satisfy the Cost Judge that it is recoverable. Having said that, I should make it clear that there is nothing unreasonable in my view in entering into a simple CFA at a time when liability has been admitted provided that the parties make a proper assessment of the inevitably much reduced risk of failure. …
20. Although the judge recognised that this was a case in which a chance of failure in the conventional sense was minimal, he failed to keep a clear eye on the true nature of the risks which Taylor Vinters were undertaking and what constituted success and failure. That led him to treat the risk of failing to beat a Part 36 offer as if it represented a 20% risk of failing to recover any damages at all, as his reference to the relevant uplift, clearly drawn from the ready-reckoner table, shows. (It is not clear that he appreciated or took into account at all the fact that, depending on the stage at which an offer might be made, a significant proportion of the solicitor’s profit costs and success fee might not be at risk for practical purposes.) He then compounded the error by adding a further 10% for the chances of litigation… to treat it as involving a 10% risk of the claim as a whole failing was wrong. At best it increased the risk attributable to the failure to beat a Part 36 offer to that extent. Similarly, the additional risk inherent in the size of the claim (which he assessed at 3%) should have been applied to the basic risk of failing to beat a Part 36 offer. So, instead of basing his calculation on an overall risk of losing about 23%, which would have led him to a success fee of 30%, he based himself on a risk of 33%, which led to a success fee of 50%. In those circumstances his decision must, in my view, be set aside …
23. As I have already said, the real difficulty in a case of this kind lies in assessing the risk of the solicitors failing to recover part of their fees as a result of the client’s failure to beat a Part 36 offer at trial and in translating that into a risk of failure in the action so that the resulting success fee can properly be applied to their profit costs of the whole proceedings. That involves the analysis and assessment of a number of different risks which interact with each other and I doubt very much whether any solicitors are well placed to undertake it. The best they can hope to do, in my view, is to make a broad assessment based on their own experience. Providing the resulting success fee falls within a reasonable bracket, however, I should not expect the Cost Judge to reject it.”
In Gandy v King [2010] EWHC 90177 (Costs), Master Haworth considered a dispute over the success fee.
“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.”
The 52% increase reflected a 65% prospect of success or a 35% risk of failure.
The solicitor in Gandy’s case had added 5% to the success fee to compensate for this being a “high quantum” case.
Following C v W, the Master said that this was wrong as, indeed, it was also wrong to add 5% for causation issues. He said:
“I accept the dicta of Moore-Bick LJ in C v W that the appropriate way of dealing with factors such as a Part 36 offer, value and causation is by adjusting the chances of success. I’ve concluded that when allowing for the factors considered by the claimant’s solicitors at the time the CFA was entered into, there was an 80 to 85% chance of success. In round figures using the ready reckoner approach this translates into a success fee of 20% which I am prepared to allow in this case.”
In Fortune v Roe [2012] 2 costs LR 288, Sir Robert Nelson considered an appeal by the claimant against a decision of Master Campbell where he had held that the success fee claimed under a conditional fee agreement should be 20% rather than the 100% claimed by the Claimant.
The claimant’s solicitor had recorded when entering into the CFA that there was no risk in relation to whether or not the claimant would succeed in recovering damages on the grounds of liability, noting:
“…the major risks relate to quantifying this case in the face of the Part 36 payment in or Part 36 offer for periodical payments. At the moment assessing the long-term outcome for our client in terms of her needs for care, accommodation and her earning capacity is not straightforward. On the basis of this, we assess the prospects of success when measured against an unknown Part 36 risk at – and therefore the success fee at -.”
In a second attendance note it was concluded that:
“The probabilities that a Part 36 payment will be made at some stage, potentially putting a significant risk on the recovery of costs beyond that point. Given the multi-faceted nature of this case, the assessment of those risks will be more difficult.”
In his judgment, Sir Robert Nelson said:
“36. When the Claimant and her solicitors, Irwin Mitchell, entered into this CFA, liability had already been admitted and judgment entered for the assessment of damages. One of the main risks of litigation, namely losing the action completely, had therefore gone. Furthermore, the admission and judgment on liability ensured that Irwin Mitchell would receive their costs incurred up to that time. Indeed it would have been possible for them to have rendered the claimant a bill for their costs and take a payment on account, although they would still have been obliged under their retainer to continue acting for the claimant in order to achieve a proper conclusion of her proceedings.
37. As judgment had been entered there were no assessable risks on the issue of liability, and as there were no allegations of contributory negligence it was inevitable that the claimant would receive substantial damages given the very serious nature of her injuries. The case involved complex quantum issues but these are common in serious multiple injury cases. There is no material to suggest that the claimant was likely to lose a specific quantum issue that would result in a separate costs order. The head injury issue was likely to be resolved as part of the general issues on quantum rather than as a stand-alone issue. The risk of the basic charges not being recovered would therefore only arise if a Part 36 offer was made, rejected, and on Irwin Mitchell’s advice the claimant pursued her claim and then failed to beat the Part 36 payment. It is probably in substantial personal injury cases of this kind that a Part 36 offer will only be made at a period close to trial when the expert evidence on the quantum issues has been resolved or at least as close to being resolved. Up until that time, i.e. close to trial, the fees earned up to that point would in Lord Justice Moore-Bick’s phrase used in C v W, ‘be secure’.”
He then went on to consider what a reasonable success fee would have been at the time that the CFA was signed in February 2006 by reference to the risk at that time. He said:
“48. … what was the risk in February 2006 when the CFA was signed and what would a reasonable success fee be in such circumstances? There may have been potential problems with the claimant’s evidence or the expert evidence, or the extent of the claimant’s head injury, but none of these issues were likely to have any effect on costs save in so far as they affected whether the claimant beats the Part 36 offer. In the absence of such an offer, those issues would not have prevented the claimant from obtaining a ‘win’. Issues such as a dispute about the causation of a head injury in a complex personal injury case are not without difficulty, but they are very rarely determined as a specific issue that can lead to a separate and distinct cost award.
49. It was indeed probable that a Part 36 offer would be served when the CFA was signed. It was also probable, given the size and complexity of this claim, that such an offer would probably be made late in the proceedings. By that time a substantial part of the claimant’s solicitor’s charges would have been incurred, and this is not altered by the fact that the last few weeks before trial are always particularly expensive. Where a Part 36 offer is likely to be made as here, within the last two or three months before trial, the costs likely to be incurred before that date would have been secure and recoverable by the claimant’s solicitors. Even after the Part 36 offer is served, the risk should not be described as substantial. As Lord Justice Moore-Bick said in the case of C v W (para. 130): ‘One would not expect highly experienced solicitors practising in this field to differ very widely in their assessment of the bracket in which an award would be likely to fall, provided they had access to the same information. …
52. Where, as here, the risk was not great and a substantial proportion of the costs were already secured for the claimant’s solicitors a success fee of 100% is unjustified …
53. I am grateful to the assistance I’ve had from my assessors. With the helpful guidance of Lord Justice Moore-Bick and the knowledge and experience of my assessors, I’ve come to the clear conclusion that a reasonable success fee, whether single or second-stage, in the circumstances which pertained in February 2006 when the CFA was entered into, was 20%. I am satisfied that Master Campbell was wholly correct in this conclusion and that accordingly the appeal must be dismissed.”
Thornley v Ministry of Defence [2011] 3 costs LR 335 was another case where Irwin Mitchell entered into a CFA at a stage when liability was not in dispute and where the CFA provided for a 100% success fee if the claim settled within three months of trial.
The District Judge had decided that the success fee was too high and assessed it at 33.3% stating as follows:
Judge Behrens, sitting with assessors, concluded that the District Judge’s assessment was too generous to the claimant. He said:
“47. I have discussed this point at length with my assessors. We are all of the opinion that there is considerable force in Mr Brown’s arguments. This was a case where the risk to Irwin Mitchell was very limited indeed. Although there are other minor risks the principal risk is the risk involved in a Part 36 offer. For the reasons given by [the District Judge] and enlarged on by Mr Brown this was very low.
48. It is true, as Mr Foy QC pointed out, that this is a complex case and to some extent the complexity can add to the risks involved in considering a Part 36 offer. However, as Mr Brown pointed out in his reply, it is important not to confuse complexity with risk. The complexity of the case may justify a higher hourly rate. It does not necessarily justify a higher success fee.
49. We are all agreed that a success fee of 33.3% is very substantially in excess of the risk taken by Irwin Mitchell. …
50. … In my view the success fee should be close to the 12.5% now provided in the rules. To my mind that figure more properly reflects the facts that there is an admission of liability and causation, that the Claimant was an infant patient and that there could be no early settlement thus reducing the risk of an early Part 36 offer.
51. I would, however, acknowledge that the wide range of possible outcomes did increase the risk somewhat with the result that I would assess the success fee at 15%.”
Mr Roy, on behalf of the Defendant, submitted that:
In relation to the reasoning of District Judge Searl, Mr Roy submitted that this was flawed on three levels:
For the Claimant, Mr Nicol submitted that:
32. As was accepted by both parties, the leading authority is C v W [2008] EWCA Civ 1459 (see paragraph 15 above). In my judgment a number of points arise from this decision. First,
a 100% success fee can never be justified in a case where liability has been admitted and there has been no Part 36 offer of settlement. The challenge is to assess the risk that some of the costs incurred will be unrecoverable.
There are, it seems to me, essentially two fundamental risks to be brought into the equation: the risk arising from the timing of a Part 36 offer and the risk of rejecting that offer and failing to better it at trial.
33. First,
so far as the risk arising from the timing of a Part 36 offer is concerned: given that it is only the costs incurred from 21 days after the making of a Part 36 offer that are at risk, the costs incurred up to 21 days after the making of a Part 36 offer are secure and will be recovered in so far as they were reasonably incurred. The risk in respect of those costs is 0%.
The reason why this is relevant is that although it is only the costs after the Part 36 offer is made which are at risk, the success fee attaches to all the costs including those not at risk because they were incurred prior to the making of the Part 36 offer. Thus, supposing a solicitor estimates his overall costs at in the region of £400,000 and knows from experience that a Part 36 offer is likely to be made at a late stage in the litigation when, say, £300,000 has been incurred and there is still £100,000 of costs to be incurred which will be the ones at risk. The proportion of the costs which are at risk is on that calculation 25%. The success fee needs to reflect the risk of losing that 25%. If, on the other hand, it is reasonably anticipated that a Part 36 offer will be made at an earlier stage when, say, £200,000 of costs has been incurred, then it is £200,000 which are likely to be at risk. The success fee needs to reflect the risk to the solicitors of failing to recover £200,000 rather than £100,000 as in the first example, a 50% costs risk rather than 25%. Thus, the timing of any anticipated Part 36 offer is an important factor.
34. The second risk factor which a solicitor needs to take into account is the risk of the fees incurred after the Part 36 offer is made not being recovered because the Part 36 offer is rejected and then, at trial, the Claimant recovering less than the Part 36 offer and being ordered to pay the costs from 21 days after the making of the Part 36 offer (or at least failing to recover those costs). In this regard, the risk may be increased by any complexities or uncertainties which increase the chance of the solicitor “getting it wrong” and advising his client to reject a Part 36 offer which ought in retrospect to have been accepted. The experience of the solicitor will be relevant as will his/her knowledge and expertise in the particular field, together with his/her knowledge of the opponent.
I would expect an experienced solicitor to be able to gauge whether a Part 36 offer puts his client seriously at risk, understanding that there may be quite a wide risk area within which a Part 36 offer may fall, and therefore give himself quite a wide margin for error. The experienced solicitor will, in most cases, back himself to get it right.
35. Armed with an assessment of these two governing risk factors, the solicitor is then in a position to take an informed view as to the appropriate success fee. Take, for example, the case where the solicitor considers that the timing of a Part 36 offer will be when £300,000 of costs have been incurred and £100,000 remain to be incurred. 25% of his costs are likely to be at risk. Supposing he considers that the chance of him getting it wrong and advising his client to reject a Part 36 which should be accepted is 20%, then his risk is 20% of 25%, namely 5%. The prospects of success are accordingly 95% and that would justify a percentage increase of 5% according to the ready reckoner. If the solicitor considers the case so difficult to call that the chance of him getting it wrong is 50%, then his risk is 50% of 25%, namely 12.5% and the prospects of success are therefore 87.5% which would justify a percentage increase of 14.29%.
36. Suppose, instead, the solicitor anticipates a Part 36 offer at a stage when the costs at risk will be 50%. And suppose the case is so difficult to call that he gives himself no better chance than 50% of giving the correct advice in response to a Part 36 offer. The risk in such a case is 50% of 50% or 25% so that the prospects of success are 75%. Using the ready reckoner, the percentage increase for all the costs would therefore be 33% so as accurately to reflect the risk to the solicitor in such a case. If, on the other hand, he assesses the risk of him getting it wrong as only 20%, then the risk is 10% and there is a 90% chance of success: this would justify a success fee of 11%.
37. It seems to me that
if a solicitor could show that he had at least attempted to make a judgment of those matters and had devised his success fee accordingly, a District Judge would be slow to say that the solicitor had got it wrong and that the success fee should not be allowed. The court would give the solicitor some considerable leeway given that the assessment of these risks is by no means a precise exercise and a solicitor would not be blamed for taking a relatively conservative approach, given what is at stake.
38. In my judgment, essentially for the reasons relied on by Mr Roy for the Defendant, the decision of the District Judge was plainly wrong and must be overturned. At paragraph 30 of her judgment, she makes no attempt to analyse the risks which should reasonably have been taken into account by the Claimant Receiving Party when the success fee was agreed in August 2012. In particular, she does not state what percentage of the solicitor’s base costs should have been regarded as at risk, nor does she consider in terms the percentage chance of success in relation to “beating” any Part 36 offer of settlement.
I have considered with my Assessor whether, despite these omissions, it can be said that this sort of percentage is “standard” or “usual” in this sort of case where a CFA was entered into after liability had been admitted and where the claimant could expect to recover 100% of the damages assessed. I am assured that it is not and, since the decision in C v W, if there is a “standard” or “usual” success fee at all, it is 20%.
No reasons have been articulated by the District Judge as to why she should have rejected 20% in favour of a success fee as high as 65% and, in my judgment, that assessment cannot stand.
39. In considering the appropriate success fee, I start from the point of view, in my judgment, and contrary to the submissions of Mr Nicol, there was nothing about this case which took it out of the category of standard, high-value personal injury cases where there are issues in relation to causation of the injuries. It is true that this Claimant had sustained four previous head-injuries, but, from my experience, there are very often difficult questions of causation in terms of the effect of a head injury in relation to many of heads of claim, where medical evidence for each side is likely to diverge. This is something which any experienced personal injury solicitor such as the Claimant’s solicitor, Mr Davis, would have been well used to dealing with and taking a view about.
40. Firstly, so far as the “timing” risk is concerned, in my judgment, as at August 2012, the Claimant’s solicitors could have anticipated the Defendant making a Part 36 offer relatively late in the proceedings. In Fortune v Roe, Sir Robert Nelson, a very experienced judge in personal injury actions, stated at paragraph 49:
“It was also probable, given the size and complexity of this claim, that such an offer would probably be made late in the proceedings.”
This is also my experience of dealing with many such cases when I was still at the Bar. In fact, the timing of the Part 36 offer in this case mirrored exactly the timing which I would have expected an experienced solicitor to have anticipated in a case of this nature when the CFA was entered into. It seems to me that even on a conservative estimate the solicitor should not have anticipated more than 25% of his costs being at risk.
41. The second main element relates to the chance of a Part 36 offer being made, being rejected on the solicitor’s advice and then the Claimant failing to better that offer at trial. I do not know, of course, Mr Davis’ “track record” in that regard but I would be surprised if a solicitor of his experience had found himself in that position on many occasions. Furthermore, at the time that the CFA was entered into, he could have anticipated that he would have the advice of Leading Counsel to rely upon in relation to consideration of any Part 36 offer. With the combined forces of his own experience and that of Leading Counsel, I would be very surprised if he would have anticipated the risk of a Part 36 offer being rejected and then not bettered at trial as being as high as 50% or anything like it. However, even if the risk is taken as 50%, if it is only 25% of the costs which are at risk, then the overall chance of success is 87.5% (100 – (50% x 25%)). Using the ready reckoner this would justify a percentage increase of 14.29%: on this basis, even a 20% success fee would be regarded as generous.
42. In any event, the Claimant, in my judgment, clearly fails to achieve a success fee of 21% or more so as to avoid the statutory reduction to 12.5%. Having discussed the risks and the proper approach of a reasonable cost judge and a reasonable solicitor with my Assessor,
I conclude that a reasonable success fee might, at a pinch, have been assessed at 20% but certainly no higher and probably lower. In any event the success fee which I would substitute in this case for the 65% reached by the District Judge should be one of 20% which then reduces to 12.5% by reason of the provisions of CPR 45.19.
The same shall apply to CFA3.
43. For the above reasons, this appeal is allowed, and the success fee for both CFA2 and CFA3 shall be 12.5%.
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Toby Moreton
Court of Protection cases: Introduction
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