Stewart Robert Thornley –v- Ministry of Defence [2010] EWHC 2584 (QB)

Posted on Thursday, October 14th, 2010

C was born prematurely and suffering from visual, behavioural and motor balance deficits after his mother was involved in a car accident in 1997. Proceedings were issued on 30th April 2003. Judgment on liability was entered on 9th October 2003 and judgment on causation on 29th April 2004. The case was settled for £2.8 million plus costs in June 2008. C’s costs were assessed at £435,698.50, including success fees of 33.3% for the solicitors and 10% for Counsel. D appealed. Inter alia D contended that it was not reasonable to enter into a CFA and that the success fees allowed to both solicitor and Counsel were too high. C had BTE insurance which had been exhausted. There was no other funding available and therefore, although liability and causation had been admitted, it was reasonable for C to enter into a CFA. C –v- W and Campbell –v- MGN Ltd (No. 2) considered. The only risk to the solicitors was a failure to beat a Part 36 offer which was low because C a minor and a patient and there was no prospect of an early settlement. The case was complex but it was important not to confuse complexity with risk. A more reasonable success fee would be 15%. Counsel would not be paid her normal fees if the case was lost or C rejected advice that the case was likely to be lost. Neither could happen where liability and causation were admitted. Counsel was therefore at no risk of not recovering her normal fees and no success fee should be recoverable. C –v- W considered.

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