Gandy v King [2010] EWHC 90177 (Costs)

Case No 4HB0905733[2010] EWHC 90177 (Costs)
IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE
Venue Clifford’s Inn, Fetter LaneDate 25 th June 2010
London, EC4A 1DQ
Before
MASTER HAWORTH, COSTS JUDGE
Between
STEVEN GANDY (a patient suing by his litigation friend, Christine Chester)ClaimantPETER KINGDefendant
Mr S Chawatama (Counsel instructed by Julie Reynolds) for ClaimantMr R Marven (Counsel instructed by Cost Advocates Ltd) for DefendantHearing Hearing date: 27 April 2010
Judgment

Master Haworth:

[1]The only matters in dispute between the parties are the success fees claimed by the Claimant’s solicitor and Counsel in Part 3 of the Bill of Costs.

BACKGROUND

[2]On 27 June 2000 the Claimant was travelling as one of five occupants in the Defendant’s car. They had driven down a narrow single track lane in Eastbourne, East Sussex, which led directly to the cliff edge at Beachy Head. When they reached the end of the lane, the Defendant, who was a newly qualified driver, felt unable to reverse back up to the main road and chose to turn the car round. As he attempted to manoeuvre, he selected first gear instead of reverse and drove off the edge of the cliff. The vehicle plunged onto the beach below.[3]The Claimant, who was 17 years old, suffered very severe traumatic brain injuries, which have pervaded every aspect of his life and rendered him a patient within the meaning of the Mental Health Act 1983. The Claimant, through his litigation friend, alleged that the accident had been caused as a consequence of the Defendant’s negligence and pursued a claim for damages.[4]The Defendant admitted liability in March 2001 in response to the Letter of Claim. The Claimant’s present solicitor (Julie Reynolds) took over the case in March 2007, and a Conditional Fee Agreement (CFA) agreement was signed on 26 July 2007. The trial was listed to commence on 3rd November 2008 in relation to quantum only. A round-table meeting took place on 10 October 2008. Settlement was not possible, and full preparations for trial were made.[5]Settlement was reached, subject to approval by the Judge on the day fixed for the trial, in a sum of £5,900,000. An Approval hearing took place on the 7th November 2008.

THE SOLICITOR’S CFA

[6]The conditional fee agreement is dated 26 July 2007. The CFA provides for a two-stage success fee. Under “success fee” the CFA recites the following:
“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”
.

COUNSEL’S SUCCESS FEES

[7]Leading Counsel, Gerard Martin QC, entered into a CFA on 10 September 2007. A success fee of 67% is claimed based on the risk assessment contained in the agreement, which included the apparent state of the proceedings and evidence.[8]Junior Counsel, Mr Napier Miles, entered into a conditional fee agreement with the Claimant’s solicitors on 24 September 2007. His assessment of the risk resulted in success fees that mirror the fixed regime to be found in CPR Part 45, namely 100% at trial; 75% if the case were to settle less than 21 days before trial; and 20% if the case were to settle more than 21 days before trial.

COSTS PROCEEDINGS

[9]The Claimant made a request for a detailed assessment hearing on 23 November 2009. The Points of Dispute and Reply state the following:
“Points in Dispute Reply Success Fees Success Fees The only items in dispute between the parties are the success fees claimed for the solicitor and Counsel in Part 3 of the bill. It is correct that the only items in dispute between the parties are the success fees claimed for solicitor and Counsel in Part 3 of the bill, all other items having been agreed or set out by the Defendant. Part 1 of the bill has been agreed with ASB Law in the sum of £112,500 to include a success fee of 12.5% The solicitor claims a success fee of 100%. Part 2 of the bill is agreed in the sum of £18,000. No success fees claimed in that part. Leading Counsel claims a success fee of 67% This is inaccurately recorded in the bill. Part 3 is agreed to the following extent Solicitor’s base profit cost £120,000 Counsel’s base fees: £60,000 Disbursements: £70,000 Junior Counsel claims a success fee of 100%. Both solicitor and Counsel claim success fees of 100% on all of their costs and fees. Solicitors success fee The solicitor entered into a conditional fee agreement with the Claimant which provided for a two stage success fee, namely 100% where the case concludes at trial; or 52% where the claim concludes before a trial has commenced. Solicitor’s success fee The CFA between solicitor and Claimant provide for a success fee of 100% where the claim “concludes at trial” or 52% where “the claim concludes before a trial has commenced”
. By claiming a 100% success fee, the Claimant is therefore saying that the matter concluded at trial. It is the Claimant’s case that the claim concluded at trial and therefore a 100% success fee attaches as per the CFA.” The Defendant disputes that this matter concluded at a trial. Whilst the parties attended at Court on the day of the trial, the trial did not actually commence in that the Claimant’s Counsel did not open the case. The parties attended before the trial Judge only for the approval of the agreed terms.” The claim settled on the day fixed for trial with parties and all the witnesses and experts attending Court on that day. All preparations had been made for the quantum trial.”

FACTS

[10]The solicitor’s risk assessment reveals:
“Part 3: Case analysis (not a fixed success fee under CPR Part 45) Following the decision of the Court of Appeal in Atack –v- Lee and KU –v- Liverpool CC we utilise a two-stage success fee. We set the success fee for case determined at trial at 100% on the basis that it must, by that stage, be viewed as a 50/50 case (following the same principles as the fixed success fees under CPR45). If both sides think that they can win the case, can be no better than 50/50 and thus a 100% success fee is required on each case won to pay for the costs of each lost case. If the case settles before trial, we have agreed to rebate the success fee. As far as the amount of the rebated success fee is concerned, we assess this depending on the type and complexity of the case, and the statistical likelihood of success or failure. Case Type Assumed case type pre-trial success rate starting Point Road accidents (not fixed success fees). 90%”
Case Type Assumed case type pre-trial success rate starting Point Road accidents (not fixed success fees). 90%”

Case Type Assumed case type pre-trial success rate starting Point

[11]By using the ready reckoner approach, the Claimant’s solicitors assessed that with prospects of success of 90%, the base success fee would be 12% rounded up to 15% in the risk assessment. They went on to assess Part 36 risks in the following way:
“Part 36 risk: optional “ring fenced damage” clause The risk of failing to beat a payment into Court is not taken into account in our assessment of prospects of success. Absent a Part 36 payment, any payment of damages is a “win” and triggers entitlement to a success fee. However, if a Part 36 payment is made and not beaten we are not paid anything from that point onwards (base costs or success fee). This was the “ring fenced damages” clause contained in Ellerton (conjoined appeal with Atack –v- Lee) and the Court of Appeal held that this justified a 20% success fee in “the simplest of claims” (ie, presumably a case which would otherwise have justified a success fee of only 5%). It follows that in the additional risk that arise where the optional “ring fence” damages clause is used. However, this risk is much greater in high value claims and in cases where there are serious issues, such as contributory fault or causation as to the likelihood of a well judged payment, is much greater.”
[12]The Claimant’s solicitor then went on to assess the success fees as follows:
“Base Level: 15% + / - % High quantum: + 5% Causation: + 5% Part 36 adjustment: + 20 Success Fee Trial: 100% Pre-trial success fee (risk): 12% Plus pre-trial success fee (Part 36): 45% Pre-trial success fee: 52%”
High quantum: + 5% Causation: + 5% Part 36 adjustment: + 20 Success Fee Trial: 100% Pre-trial success fee (risk): 12% Plus pre-trial success fee (Part 36): 45% Pre-trial success fee: 52%”

Plus pre-trial success fee (Part 36): 45%

[13]This figure is inaccurate and should reflect a figure of 57%. In her witness statement dated 14 April 2010, Julie Reynolds explained the context in which the success fee in the solicitor’s CFA was set. In paragraph 16 she said this:- “(i) Although the Defendant had admitted liability, this had not been formalised and there were procedural irregularities that could have been capitalised upon by the Defendant. In my submission, the Claimant was, throughout these proceedings, a Protected Person, but a claim form had been issued on his behalf on 17 February 2004 in his own name/right and without a litigation friend. No RTA notice was given to the insurers and the claim form was never served upon the Defendant or the Defendant’s solicitors. The parties had agreed to a consent order, providing that the proceedings be stayed until 31 December 2004, but no further steps at all were taken in the proceedings thereafter. There was, therefore, a risk, that the Defendants could raise these technical defects, and in particular could raise the point that the claim form was defective and that the Particulars of Claim had never been served in accordance with the rules, and hence the claim should be struck out. This was a significant risk which I had in my mind when the conditional fee agreement was entered into, and certainly justified at least a 12% risk on “liability”, although I accept that this would have been better described as a procedural risk and specifically referred to in the risk section on the form. (ii) Insofar as evidence in support of the claim was concerned, this was such that it was impossible to have any true grasp of the value of the claim when the conditional fee agreement was entered into. ………… (iii) Insofar as medical and non-medical evidence was concerned … It can be seen from the range of reports that there were a number of aspects of the Claimant’s injuries to be looked into, and it can also be seen that the evidence was very old, the earliest being almost two years old, but with the bulk of the evidence being four or five years old. It was therefore necessary for me to collate all of the Claimant’s medical notes and records … before it was possible to even begin to reach any conclusions with regard to the value of the Claimant’s claim. (iv) Another complicating factor in this case was that there was no current schedule of special damages. An incomplete draft had been prepared by Counsel some time previously, but there was not a working document to which special damages were being added as the case progressed. Throughout the case the Defendants made a mixture of payments, some payments were made direct to rehabilitation providers … other payments were made to a family friend … Further funds were paid directly to ASB and they paid expenses on the Claimant’s behalf … It was therefore the case that when the CFA was entered into, it was not even possible to obtain a clear figure of the interim payments made by the Defendant, and there was certainly no clear picture as to the Claimant’s total special damages to date. (v) In addition to the difficult evidential position, it was also the case that this case was considerably complex from a substantive point of view. This Claimant had considerable difficulties with insight, and it took him several years to even acknowledge and accept the physical disabilities that he had. He did not accept his cognitive and other difficulties caused by his brain injury and it was therefore extremely difficult to persuade a Claimant to accept the care he needed to keep him safe, and to ensure his quality of life in the community … As medical evidence came in, it was clear that our experts remained of the view that the Claimant did require very high support levels, but, of course, a major issue, separate and apart from any dispute between the parties to the extent of his needs, was the Claimant’s acceptance of his support package and in view of recent developments, there was a very high risk that a Judge might well find that ultimately the Claimant would not accept professional care and hence reflect this in the Claimant’s damages award. A major risk and major issue of uncertainty. 17. Given the above factors, it is my submission that there was a considerable Part 36 risk in this case. There was a ring fenced Part 36 clause in the conditional fee agreement, and in setting the success fee, I undoubtedly had all these factors in mind and the fact that should the Defendants make a Part 36 offer, it would be extremely difficult for me to advise my client on it, given the stated evidence on the file … As the Defendant has conceded this case was a long way from quantification when the conditional fee agreement was entered into, and I was well aware that accepting instructions in this case would put me in a position whereby I could be risking all costs incurred in the light of a part 36 offer”.[14]The CFA with Leading Counsel, Gerard Martin QC, was entered into on 14 September 2007, on the current APIL/PIBA5 terms. His risk assessment states the following:(1) Liability admitted in correspondence only – P of C not yet served(2) Small risk D would resile from admission. Effectively this is a quantum only case where success would be beating an assumed Part 36 offer, or payment in.(3) We are commissioning new reports, no care report, therefore not in a position to value claim.(4) Client, a patient with attendant complexities in many areas which could effect the value of claim.”[15]Leading Counsel estimated the overall prospects of success, taking risk factors into account in the region of 60%, which on the ready reckoner contained within Leading Counsel’s CFA, translated to a 67% success fee.[16]Junior Counsel’s conditional fee agreement sets out the reasons for setting the percentage increases at the level stated as follows:
“Similar to CPR 45.18(2)/19: over £500,000K, a complex case involving court of protection. Facts of accident not currently clear, possibility of degree of volenti or contrib.”
[17]During the hearing, an issue arose as to whether both Counsel instructed in this matter, had agreed to the “ring fenced” Part 36 offer clause, similar to that agreed by the Claimant with his solicitors. Letters from the clerks to both Leading and Junior Counsel, to the Claimant’s solicitors dated 15 September 2007, and 27 September 2007 respectively, confirmed that where a Part 36 offer was rejected on Counsel’s advice, and the Claimant subsequently failed to beat that offer, neither Leading nor Junior Counsel would claim any costs for the work done after the day for acceptance of the offer of payment. Both Counsel were content that the agreements reflected that condition.[18]The transcript of the hearing on 3 November 2008, recorded the following exchange between Leading Counsel for the Claimant and the Judge:
“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.”
Adjourned for a short time SUBMISSIONS CLAIMANT

SUBMISSIONS

[19]The Claimants submitted that the claim concluded “at trial”. The wording of the CFA does not mirror that of the provisions relating to success fees in Part 45 CPR. The trigger for recovering 100% success fee are the words “concludes at trial”. The CFA does not make any reference to a “contested hearing”, nor should the making of “an opening” be read into them. The words “concludes at trial” should be given their plain and ordinary meaning. They should be interpreted purposively in furtherance of the overriding objective. It was submitted that the word “trial” includes a hearing on quantum only. 3 November 2008 was the day fixed for the trial. The parties and witnesses attended Court on that date for the trial to take place. The Judge was ready to hear the case, having done some general reading and the order of witnesses for the first session was announced. The Claimant relied on the case of Christine Cutler v J E Stephenson & Co [2008] EWHC 3622 (QB) where Master O’Hare considered that the term “trial” “describes a core event at which matters will be finally determined.” The parties in this case attended on 3 November 2008 for the trial and settlement was reached at trial. It was submitted that to deny this construction would distort the plain and ordinary meaning of these words, contrary to the overriding objective. Having been aware of the claim since December 2000, the trial date being set on 3 November 2008 and the service of a schedule of loss on 25 September 2008, there was no reason why settlement could not have been reached before 3 November 2008. The Defendant would have been aware that a higher success fee was likely to be claimed if the case went to trial. It was open for the Defendant to make a Part 36 offer at any time.[20]As an alternative argument, the Claimant submitted that if the case did not conclude at trial, then the Claimant should be entitled to a success fee of 90%. This submission was made good on the basis of the risk assessment of the Claimant’s solicitor and the matters referred to by Julie Reynolds in her witness statement. The fact that this was a two stage success fee was a good reason to allow this level of uplift following KU –v- Liverpool City Council [2005] 4 Costs LR 600[21]It was submitted that the risks in this case were substantial. At the date that the CFA was signed, the solicitor was at considerable risk of not being paid at all in a high cost case. The risk, complexity and amount of work in this case were far greater on any objective basis than in the case of C –v- W [2008] EWC Civ 1459. At the time the CFA was entered into, the solicitor was not in any position to put any figure on the value of the claim, or to make a considered assessment of a Part 36 offer. The major issues that remained outstanding until trial, namely care and case management, could have been substantially affected by the living arrangements of the Claimant. The impact of gratuitous, as opposed to professional, care, could have made the difference between some £2-£3 million in damages. This uncertainty would have made judging a well pitched Part 36 offer for an experienced litigator a difficult exercise.[22]For the Claimant, it was submitted that in relation to Leading Counsel’s success fee of 67%, this was entirely appropriate, based on the risk assessment carried out by Counsel, prior to the CFA being entered into, including the apparent state of the proceedings and evidence.[23]In respect of Junior Counsel’s success fee, the same criteria should apply. His assessment resulted in success fees that mirrored the fixed regime under Part 45 CPR, and that this was an entirely appropriate approach to fixing his success fee.

DEFENDANT

[24]For the Defendant it was submitted that it was clear from the transcript of the hearing on 3 November 2008, that the trial did not begin. The Judge was first told that the Claimant was not ready to start and that matters were being considered. He was then told that the case had settled. On 7 November the Judge approved the draft order in the terms agreed and ordered accordingly. In those circumstances, the claim did not conclude at trial, and in that respect it was submitted that this case was on all fours with Sitapuria –v- Khan, Liverpool County Court, 10 December 2007. As such, the indemnity principle would limit the recoverable success fees to 52% in respect of the solicitor’s CFA, 67% for Leading Counsel’s CFA, and 75% in respect of Junior Counsel’s CFA.[25]Alternatively, it was submitted for the Defendants that at the time the CFA was executed, it was inevitable that the claim was going to achieve a “win”; in other words to recover damages. The only risk that was faced by the solicitors was a “quantum risk”. In C –v- W [2008] EWCA Civ 1459 the Court of Appeal only allowed a 20% success fee for such a quantum risk. For the Defendant it was submitted that in this case even that level of success fee would be too high. In this case, the solicitor’s success fee was staged, with a higher success fee if the claim had gone to a “quantum only” trial. Accordingly, the pre-trial success fee should have been lower than a single stage success fee would have been. The only risk (pre-trial) was that the Claimant would seek to accept an offer belatedly, and then consequently not be entitled to his post-offer costs. It was submitted for the Defendant that in C –v- W there were issues of contributory negligence which were not present in this case. Mr Marven for the Defendant submitted that there was little risk in this case. At the time the CFA was signed, the evidence was incomplete. There were no offers and it was unlikely that with the complexity of this litigation an insurer would make an offer. The case had not been quantified and that made the risk of an offer less and not more likely. It was most improbable that an offer would be made. This was a low risk case. In all the circumstances, a 5% success fee is all that could be justified.[26]It was submitted that if, contrary to the Defendant’s primary case, the second stage of the success fee was triggered, the success fee should be limited to 20% for broadly the reasons given in C –v- W. It was submitted that although this is the second stage of a two stage success fee, any argument that the fee should be higher than in C –v- W was compensated for by the absence of contributory negligence in this case.[27]So far as Counsels’ success fees were concerned, it was submitted for the Defendant that Leading Counsel should be restricted to a 10% success fee on the basis of C –v- W, and adjusting for the facts of this case; and likewise Junior Counsel was at negligible risk during the first or second stage of his three stage success fee, and again the success fee should be limited to 10%. Although if (contrary to the Defendant’s primary case) the third stage had been reached, then Counsel should be restricted to a 20% success fee.

DISCUSSION AND CONCLUSIONS

[28]The first question to be determined is whether, on the basis of solicitors’ CFA agreement, this claim had concluded at trial. To my mind the word “trial” denotes an examination and determination of issues between the parties by a Judge, or some other tribunal. I accept that the date fixed for a quantum trial had been reached, namely 3 November 2008. However, 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. Mr Martin was not ready to start and sought an adjournment until 2.00pm on the day fixed for trial. At that time Mr Martin, in an exchange with Mr Justice Blake, told the Court that the parties had compromised the claim. In my judgment, the trial did not commence on that day. On 7 November 2008, Mr Justice Blake approved the compromise agreement reached by the parties several days before. It was urged upon me by the Claimant that the approval hearing represented a “core event” which finally decided issues between the parties, and accordingly, qualified for the 100% success fee referred to in the solicitor’s CFA. An approval settlement in my judgment does not meet the criteria of a “trial”, and in those circumstances I find that the Claimant’s claim did not conclude at trial and accordingly neither the Claimant’s solicitor, Leading Counsel or Junior Counsel are entitled to a success fee of 100%.[29]I am fortified in this view by the judgment of Mr Justice Blair in Cutler –v- Stephenson & Manchester City Council [2008] EWHC 3622 (QB), where at paragraph 8 he said:
“The appeal was heard by Master O’Hare on 11 July 2008 … However, he considered that he was not directly concerned with the position pre-trial because he thought that the term “trial”, which was used in the success fee assessment form, “describes a core event at which matters will be finally determined”.”
[30]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.[31]During the course of submissions, from both Counsel for the Claimant and Defendant, I was referred to a decision of His Honour Judge Stewart QC of Sitapuria –v- Khan in the Liverpool County Court on 10 December 2007, and a decision of my own in the case of Dahele –v- Thomas Bates & Son Ltd [2007] EWHC 90072 (Costs). Both the cases relate to the question of what constitutes a “trial” for the purposes of Part 45 CPR, the fixed costs regime. I distinguish both those cases from the present case on the basis that the fixed costs regime in Part 45 does not apply to the facts of this case.[32]I remind myself that in considering the Claimant’s solicitor’s risk assessment and the factors that led her to fix the success fee in this case, of the provisions of CPD 11.7. I must have to regard the facts and circumstances as they reasonably appeared to the solicitor and Counsel when the funding arrangement was entered into. I do not have the luxury of applying the test with the benefit of hindsight.[33]What then is the appropriate success fee for both the Claimant’s solicitors, Leading and Junior Counsel? Liability in the road traffic accident was admitted in March 2001 in response to a letter of claim. The Claimant’s present solicitors took over the case in March 2007 and signed the CFA agreement on 26 July 2007. That agreement proposes a two stage success fee, with a recoverable success fee for the case determined at trial at 100%. I have already found that the case was not concluded at trial and therefore a 100% success fee is inappropriate. The agreement goes on to state that if the case settles before trial, the Claimant’s solicitors agreed to rebate the success fee. That was erroneously calculated in the agreement at 52%, taking into account the factors then known to the Claimant’s solicitors. Those factors suggest that in a road traffic accident which is not a fixed success fee case, the assumed case type pre-trial success rate starting point is 90%. Using the ready reckoner, this translated into a “Pre-trial success fee (Risk) of 12%, to which the Claimant’s solicitors sought to add further factors. For example, high value, serious issues as to contributory fault, or causation. These are referred to in the risk assessment as “Plus pre-trial Success Fee (Part 36).” The “Base level” success fee in this part was set at 15% without further explanation. Although the Defendant had admitted liability, there were procedural irregularities which could have been capitalised upon by the Defendant. This, the Claimant’s solicitor stated was a significant risk which she had in her mind when the CFA was entered into, and justified at least a 12% success fee in relation to the issue of liability. In my judgment, “Pre-trial Success fee (Risk)” of 12% representing a 90% chance of success, coupled with a further 15% for a Base Level “Plus pre-trial Success Fee (Part36)” is too high. In total this equates to a 27% success fee, which on the ready reckoner approach reduces the prospects of success to something in the order of 78-80%. Whilst I accept the Claimant’s solicitors’ statement that there were some procedural risks, the prospects of success in this case were substantially higher than 80%, and in my judgment were more likely in the region of 90-95%. In my judgment there is an element of double counting in the risk assessment of the Claimant’s solicitors with the assumed case type pre-trial success rate starting point of 90%, equating to a “Pre-trial Success Fee (Risk)” of 12%, and the “Base level Plus pre-trial Success Fee (Part 36)” set at 15%. As far as I can judge, in reality, both those elements relate to the same risk, which, as I have said, in this case, was extremely small, bearing in mind that liability had been admitted many years before the solicitors’ CFA was entered into.[34]In addition to the “Pre-trial Success Fee (Risk)” of 12%, and the “Plus pre-trial Success Fee (Part 36)” of 15%, the Claimant’s solicitor, in her risk assessment added the following percentages for the following risks:
“High quantum + 5% Causation + 5% Part 36 adjustment + 20%”
.

Causation + 5%

[35]I entirely accept that this was a high value case. It settled for £5,900,000. Does that merit a 5% success fee in itself? Likewise, I accept that there were complicating factors insofar as the medical and non-medical evidence was concerned, which can be seen from the evidence of the Claimant’s solicitor at paragraphs 16(iii) and (v) of her witness statement. There was a range of medical and non-medical evidence in respect of a number of aspects of the Claimant’s injuries. Some of the evidence was old and out of date at the time that the CFA was entered into. In addition, there were very clear difficulties with regard to the Claimant himself. He had difficulties with insight and the acceptance of the physical disabilities which the accident had caused. In turn that led to a possible situation where the Claimant would not accept professional care. This could have had a massive impact on the damages awarded for future care. In this regard I entirely accept the evidence of the Claimant’s solicitor that this may have made as much as £2 million to £3 million difference in the ultimate award.[36]In the case C –v- W [2008] EWCA Civ 1459, the Court of Appeal dealt with the assessment of risk in relation to a conditional fee agreement made between a solicitor and his client after the Defendant had admitted liability. Moore-Bick LJ said at paragraph 15:
“To add a further 20% success fee to reflect the size of the claim was, in my view, also wrong. It is probably true in general that high value claims tend to be more complex and to involve a greater amount of work than claims of lower value, but does not itself increase the risk of losing. If more work is done, the base fees are inevitably higher, but the application of a percentage success fee means that the amount recovered by the solicitor if the claim succeeds, is correspondingly greater. It may be the case that the more complex the litigation, the larger the number of potential pitfalls, but the right way to allow for that is to adjust the chance of success and by that means the success fee. To make a direct increase in the success fee itself is likely to distort the calculation.”
[37]I agree with that analysis and, accordingly, the simple addition by the Claimant’s solicitor in this case of a 5% success fee to compensate for “high quantum” is wrong. Likewise, to add 5% for causation issues, again following the judgment in C –v- W is wrong. The appropriate way to allow for causation issues in this case, is to adjust the chances of success.[38]Finally, in the Claimant’s solicitor’s risk assessment as “Plus pre-trial success fee (Part 36)”, there is an additional 20% success fee for Part 36 adjustment. This CFA had a ring-fenced Part 36 clause. In other words, were a Part 36 offer to be made and not beaten, the solicitor would recover nothing. I accept the evidence of Miss Reynolds in paragraph 16(ii) of her witness statement that at the time the CFA was entered into, it was impossible to have any true grasp of the value of this claim. A major complicating factor so far as the Claimant’s solicitor was concerned at the time of the CFA was entered into, was that there was no current schedule of special damage. An incomplete draft had been prepared by Counsel some time previously, but there was not a working document to which special damages were being added as the case progressed. It is fair to say that the Schedule of Special Damage was still being worked upon up to the time or very shortly before the date fixed for the quantum hearing. At the time that the CFA was entered into, no Part 36 offer had been made by the Defendant. There were no issues of contributory negligence in this case. The evidence was incomplete.[39]In C –v- W Moore-Bick LJ at paragraph 23, stated the following:
“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 the risk of failure in the action so that the resulting success fee can be properly 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 that the resulting success fee falls within a reasonable bracket, however, I should not expect the Cost Judge to reject it.”
[40]In relation to the Part 36 adjustment, and the additional 20% success fee, I prefer the submissions of Mr Marven, Counsel for the Defendant. In my judgment, at the time the CFA was entered into there was little Part 36 risk. The evidence was incomplete, and the case not quantified. In my experience it is highly unlikely that any defendant would have made, or indeed could have made, a realistic Part 36 offer at that time. There was in my judgment a low risk of a Part 36 offer not being beaten at the time the CFA was entered into. In those circumstances, the addition of a Part 36 adjustment of 20% to the overall success fee is too high. Nonetheless, there was some, albeit a low, risk of a Part 36 offer being made much nearer to the proposed date of trial when an up to date schedule of damage would had been served.[41]Should I then adjust the success fee on the basis that this is a two-stage CFA? Counsel for the Claimant submitted that I should allow a success fee of 90% based on the fact that this was a two stage success fee CFA, which in itself is good reason to allow this level of uplift. Brooke LJ at paragraph 57 of KU –v- Liverpool City Council [2005] 4 Costs LR 600stated:
“We end by reiterating that Cost Judges should be more willing to approve what appear to be high success fees in cases which have gone a long distance towards trial, if the maker of the CFA has agreed that a much lower success fee should be payable if the claim settles at an early stage.”
[42]In this case, the Claimant’s solicitor had agreed a lower success fee, namely 52%. In KU, however, liability was still an issue; here it was not. A success fee of 52% is a significant percentage uplift in any event. Accordingly, I distinguish the facts of KU from the circumstances in this case and make no allowance for the fact that this was a two-stage success fee.[43]Taking into account all the factors that are set out in the witness statement of the Claimant’s solicitors, and having considered in detail the factors set out in the risk assessment completed by her, I have concluded that a success fee of 52% in this case does not properly reflect the risk to the Claimant’s solicitors at the time that the CFA was entered into. I accept the dicta of Moore-Bick LJ in C –v- W that the appropriate way of dealing with factors such as the risk of a Part 36 offer, value and causation, is by adjusting the chances of success. I have concluded when allowing for the factors considered by the Claimant’s solicitors at the time the CFA was entered into, there was an 80-85% 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.[44]So far as Leading Counsel’s success fee is concerned, claimed at 67% based on prospects of success of 60%, I can see no reasons for diverging from the success fee of 20% which I have allowed the Claimant’s solicitor. The risk assessment of Leading Counsel refers to an admission of liability in correspondence only and a possibility that the Defendants would resile from that admission. The admission had been made as long ago as 2001, and in my judgment, there was an extremely low risk that the Defendant would resile from the admission, particularly in the light of the circumstances giving rise to this accident. The principal risk referred to by Leading Counsel was that of beating an assumed Part 36 offer or payment in. I have already dealt with this issue in relation to the Claimant’s success fee. In those circumstances Leading Counsel will be entitled to a success fee of 20%.[45]In relation to Junior Counsel’s success fee, this was set as a three-stage success fee on equivalent lines to the fixed success fees in Part 45 CPR. It is structured as follows:
“If the case: Concludes at trial at 100% Concludes less than 21 days before trial at 75% Concludes more than 21 days before trial at 20%”
Concludes at trial at 100% Concludes less than 21 days before trial at 75% Concludes more than 21 days before trial at 20%”

Concludes less than 21 days before trial at 75%

[46]Junior Counsel’s risk assessment is based on factors similar to CPR 45, the fact that it is a complex case, the facts of the accident are not currently clear and the possibility of volenti or contrib. I have already dealt with the issue of contributory negligence, which was not a factor in this case. The matter did settle within 21 days at fixed for trial. Should Junior Counsel be entitled to the 75% success fee in those circumstances, or be restricted to the 20%. I have allowed the Claimants solicitor and Leading Counsel. I can see no good reason why Junior Counsel should be entitled to a success fee of more than 20% based on the factors that I have already referred to.[47]Accordingly, the success fees claimed at items 107, 108 and 109 of the Claimant’s solicitor’s bill of costs, will be allowed at 20%.[48]In relation to the costs of detailed assessment, the Defendant has been successful in his submissions, and in principle therefore is entitled to his costs of detailed assessment. In the event that costs cannot be agreed between the parties, I direct that the Defendant file a statement of his costs with a statement from the Claimant of any objections thereto. I will then summarily assess the costs of detailed assessment.

Cited in 4 later judgments