CHILDREN & SUCCESS FEES: A POST-APRIL CHECKLIST & SOME DIFFICULT QUESTIONS

A previous post dealt with links to the rules and Practice Direction relating to success fees in children cases after the 6th April 2015.  Here is a checklist of the relevant matters.

CHECKLIST

Prerequisites

• The action must have been settled for less than £25,000.
• Unless fixed costs apply an application cannot be made until after costs have been assessed or agreed.
• The litigation friend must then make an application for payment out.

The witness statement

• The litigation friend (note not the solicitor) must file a witness statement.
• A copy of the Conditional fee agreement or Damages based agreement must be exhibited to the witness statement.
• That witness statement must also exhibit, or contain details of:
• The risk assessment by reference to which the success fee was calculated.
• The reason why that particular funding model was calculated.
• The advice given to the litigation friend in relation to funding arrangements.
• Details of any costs agreed, recovered or fixed costs recoverable.
• Confirmation of the amount of the sum agreed for general damages.
• Confirmation of the sums for pecuniary loss (other than future pecuniary loss) net of any sums recoverable by the Compensation Recovery Unit.

PRACTICAL ISSUES

1. It is not clear what is supposed to happen in a case where damages exceed £25,000.

2. There must be serious doubts whether, in many cases, the extra costs awarded will justify the costs of such an application. It is unlikely that the costs are recoverable inter partes. In a low value case for, say, £2,000, the maximum recoverable by way of additional costs will be £500.00. This could soon be swallowed up by the new, extortionate, court fees.