Fortune v Roe [2010] EWHC 90180 (Costs)

Posted on Thursday, November 4th, 2010

This was a matter where the remaining live issue was the level of the success fee due under the Claimant’s CFA.

The Claimant was involved in a “head-on” car crash with a car being driven by the Defendant on 08/12/01 and she suffered catastrophic injuries. Initially, the claim was covered by an insurance policy, however, when the indemnity limit was reached, the Claimant entered into a CFA dated 03/02/06 which provided for a success fee of 100% if the claim settled within 3 months of trial but reduced to 25% the matter settled earlier.

Liability was admitted on 27/03/03. Proceedings were served on 14/01/05 and on 06/04/05 judgment was entered for damages to be assessed. The matter was listed for trial on 30/03/09. On 12/03/09, the Claimant accepted the Defendant’s Part 36 offer of £600,000 less CRU.

Costs were agreed, but the level of success fee remained at issue at detailed assessment. The Defendant objected to the 100% success fee, contending that 20% was more appropriate. Master Campbell accepted the Defendant’s submissions and allowed a 20% success fee. In his judgment, the Claimant had “won” her case when liability was admitted by the Defendant as this admission of liability and the submitting to Judgment was a “win” carrying an entitlement to the payment of costs. As far as the recovery of the Claimant’s costs was concerned, it was a risk free environment that she was litigating in as she was bound to recover substantial damages therefore it was unreasonable for the provision of a 100% success fee in the CFA as if liability had been in doubt.

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