Lamont – v – Burton  EWCA Civ 429
This was a matter where the Claimant was injured on 10/09/04 in a road traffic accident and the claim was conducted under a CFA. Liability was admitted early and proceedings were issued on 10/06/05. On 16/08/05 a Part 36 payment in the sum of £1,800 was made. However, the payment was rejected and the matter proceeded to a disposal hearing on 13/09/05 when damages were awarded to the Claimant in the sum of £1,774.32 and costs were awarded up to 07/09/05. The Claimant was ordered to pay the Defendant’s costs from 08/09/05. The Deputy District Judge summarily assessed the Claimant’s costs at £4,550.92, which comprised base costs of £1,537.20, a success fee of 100%, disbursements of £938.50 and VAT.
The matter concluded at trial and so under CPR 45.16(a), a 100% success fee was sought. However, the Defendant argued that had the Claimant accepted the Part 36 payment within the time for acceptance, under CPR 45.16(b), the success fee would have been limited to 12.5%. Therefore, it was submitted that the Deputy Judge should have exercised his discretion and allowed the success fee of 12.5%.
The appeal was dismissed as it was found that the Court had no discretion to award a different success fee to that provided for by the rules where a Claimant failed to beat a Part 36 offer. However, it was accepted that there could well be a case for deciding that, if he failed to better a Part 36 offer or payment, a Claimant should only be allowed the same success fee that he would have recovered if the offer had been accepted, although this was a matter for the Rule Committee and the Civil Justice Council to consider.