C v W [2008] EWCA Civ 1459 (19 December 2008)

C v W [2008] EWCA Civ 1459 (19 December 2008)

In cases where liability has been admitted before the CFA is entered into, the risk of failure is minimal and the success fee must be correspondingly low. The assessment of risk must be based on the circumstances as they appeared at the time of the agreement, and not inflated by factors such as the size of the claim or theoretical risks. In this case, a 20% success fee was fair and reasonable.

Citation
[2008] EWCA Civ 1459
Parties
Claimant/respondent: C (a patient acting by her litigation friend Jocelyn Fox); Defendant/appellant: W
Jurisdiction
England and Wales
Judgment Date
19 December 2008
Procedural Posture
Civil Appeal / Appeal From Detailed Assessment of Costs (success Fee)
Outcome
Appeal allowed. Judge's order set aside. Success fee assessed at 20%.
Legal Topics
Conditional Fee Agreements, Success Fees, Assessment of Costs, Access to Justice
Civil Procedure Costs Conditional Fee Agreements Success Fees Assessment of Costs Access to Justice

Case Brief

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Parties

C (a patient acting by her litigation friend Jocelyn Fox)

Claimant/respondent

W

Defendant/appellant

Procedural Posture

Civil Appeal / Appeal From Detailed Assessment of Costs (success Fee)

Legal Issues

  1. 1 What is the appropriate success fee uplift on base costs under a conditional fee agreement where liability has already been admitted?
  2. 2 How should the risk to solicitors be assessed in such circumstances for the purposes of a success fee?

Ratio Decidendi

In cases where liability has been admitted before the CFA is entered into, the risk of failure is minimal and the success fee must be correspondingly low. The assessment of risk must be based on the circumstances as they appeared at the time of the agreement, and not inflated by factors such as the size of the claim or theoretical risks. In this case, a 20% success fee was fair and reasonable.

Court Disposition

Appeal allowed. Judge's order set aside. Success fee assessed at 20%.

Orders

  • The success fee payable under the CFA is assessed at 20%.
  • The previous order of the lower court is set aside.