MORE ON CHILD CLAIMANTS AND THE RECOVERY OF SUCCESS FEES: AN EXTREMELY HELPFUL NOTE FROM THE CLAIMANT'S SOLICITORS

3 Responses

1. 

   Charles · September 27, 2014 at 16:16:48 · →

   I personally find it offensive that this attempt to take money from a child’s damages is being pursued with such vigour. Would it really be too much to expect practitioners simply to waive success fees in infant cases?

   Success fees have always been an absurdity. Most volume PI firms only take on cases they know will be won, so they’re just an additional and unjustified profit. Indeed, I would be very interested to see some figures for a firm’s banked success fees as against costs written off in failed cases – I suspect the success fees would outweigh the written off costs by a substantial multiple.

   Everyone knows that PI has been massively overpaid for the skill and risk involved for many years. It’s the greedy attitude to costs demonstrated in this case that finally killed the goose that laid the golden egg, and as someone who left PI work some years ago, having refused to buy in work it was the best decision I ever made.

   1. 

      Robert Pettitt · September 27, 2014 at 18:48:52 · →

      Clearly you don’t like the CFA regime. You left PI some years ago (seemingly on principle) and hold some bold unsupported opinions on it that mirror those of Neuberger.

      You seem to be under the impression that PI solicitors are raking it in because of success fees. You don’t get 100% uplifts in cases that settle early and even well into proceedings.

      You do not give thought to the new test of proportionality which arguably makes the recovery of uplifts ever more important. Success fees are now reduced in most cases because 25% damages is less than the uplift and the success fee not only pays for the losing cases but also the ever growing shortfalls on winning cases.

      And, of course, solicitors all know which cases are winners. Such an absurd statement.

      There is absolutely no logical reason why a child should not pay an uplift when an adult has to. You can say that it’s a child and that is enough of a reason, but why? Also remember that the recoverable uplift is limited to 25% of general damages and past specials. A child’s medical and care costs are ringfenced against uplift.

      The stark reality is that low value work may soon become unprofitable due to the current concept of proportionality and child cases more so because you have to incur necessary costs of settlement approval which may not be ‘proportionate’.

      Look down on CFA solicitors if you like, but they provide access to justice and they gamble their fees in the process.

      Typed from phone so expect typos.

2. 

   Rm · December 2, 2014 at 16:18:32 · →

   This is all very silly and we have been here before. When CFAs were first introduced, the success fees were not recoverable inter partes. Accordingly, a similar sort of situation started to arise, with courts disallowing the success fee as against the child, When the CPR were introduced in 1999 a specific provision was introduced, CPR r 48.9(6), to address this problem. That provided that, where the Claimant was a child or patient, the success fee under a CFA could not be varied by the court except in accordance with CPR 48.9(5) – a provision mirrored (now) by CPR 46.9(4) and sets out the standard test for assessment of reasonableness of a success fee.
   In other words, the court had to allow the success fee unless the quantum of the fee itself was unreasonable for reasons properly sustainable on assessment.
   That cured the problem.
   Ironically, of course, at the same time the inter partes recoverability of success fees was introduced. Because success fees were then generally recovered inter partes, the problem went away anyway, so much so that 48.9(5) was seen to be otiose and was deleted.
   The answer is simple – reintroduce 48.9(5). That makes clear that the success fee must be allowed but, that like any other item of costs on a solicitor-client basis its quantum can be assessed.

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