Spring Update
With so much debate and imminent change in the world of legal costs there has been a plethora of articles to digest this year. I do not intend to cover any issues covered by the Jackson Report or MOJ review, but rather bring to your attention two decisions this year which may have slipped your attention, but are very important for those concerned in personal injury litigation
Fixed Success Fees
The first concerns the question of fixed success fees and specifically what is the definition of "Trial" to trigger a 100% success fee. The case Amin/Hussain v Mullings/Royal Sun Alliance* was an RTA, but the conclusion reached by The Honourable Mrs Justice Slade DBE may be equally applicable to other fixed fee scenarios
This was a case that settled by negotiation on the actual day of the trial and a consent order was granted, although there was also a counterclaim which did not settle as regards quantum and judgment was given on that aspect of the counterclaim. Can the Claimant recover 100% success fee? Yes was the answer at first instance, but an unequivocal NO in the High Court appeal. No, because the definition of trial is a contested hearing and does not refer to a date, even if the date the case concludes is the trial date, and no because a counterclaim is separate and additional to a Claimant's claim (although the Defendant, who also acted by way of a CFA was entitled to 100% on the counterclaim
Interest On Costs
The second case to bring to your attention was a County Court appeal before HHJ Stevenson in Liverpool County Court between Gray v Toner**. This referred to interest on costs. Interest on costs has been payable from the date of judgment (the order giving rise to the costs liability), rather than the date when the costs were quantified (the assessment hearing) and this has been the presumption of the last 20 years (the incipitur rule). HHJ Stevenson concluded, however, that interest is not recoverable for the period prior to the assessment hearing, but rather from the date of the assessment hearing in cases which are funded by way of a CFA. The principal reasoning of the judgment is that no fees are paid by the Receiving Party under the terms of the CFA until the litigation is complete and if no fees have been paid then there should be no interest payable as the client has not been out of funds. This case will undoubtedly be freely quoted by Defendants, although it remains a County Court only decision thus far
*(2011) EWHC 278 (QB)
**CC(Liverpool)(Judge Stewart QC)11/11/10
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