In a short judgment on costs following conclusion of the Iraqi Civilian Litigation The Hon. Mr Justice Turner was tasked with determining the proper interpretation of the individual Claimants’ CFAs insofar as they allowed for recovery of staged success fees.
Master Victoria McCloud (sitting as a Deputy Costs Judge in the SCCO) determined preliminary issues in the course of a detailed assessment proceeding under the Solicitors Act 1974, namely:
whether the entirety of the solicitors’ fees were incurred with the client’s consent in the sum claimed; or, alternatively
if not whether at least the level of success fee was incurred with consent.
Applying the principles laid down in Surrey v Barnet And Chase Farm Hospitals NHS Trust  EWCA Civ 451 Mr Justice Jay dismissed this appeal against a Costs Judge’s disallowance of additional liabilities including a success fee of over £300,000 following a switch from legal aid funding to CFA in 2012.
The Court of Appeal has upheld the decisions of District Judge Bellamy (first instance) and Soole J (on appeal) that a 100% success fee in a low value personal injury claim which was fixed without any reference to the actual risk involved amounted to a cost of “an unusual nature or amount” under CPR 46.9(3)(c).
Master Rowley tackles a number preliminary points in a detailed assessment arising from a complex clinical negligence claim, including an alleged mis-certification of the claimant’s budget giving rise to an application under CPR 44.11, level of success fee and hourly rates and ‘good reason to depart’.
Court of Appeal decides that a pre-April 1 2013 CFA was novated when a claimant agreed to instruct a replacement firm – but that LASPO transitional rules allow their success fee to be recovered regardless.
A retrospective success fee in a retrospective conditional fee agreement was not contrary to public policy.