Kilby v Gawith [2008] EWCA Civ 812 (19 May 2008)

The appeal concerned, under Section II of CPR Part 45, the interpretation of the fixed recoverable costs regime. The matter concerned an unlitigated RTA case where the total agreed damages were £3,068.84.

The Claimant had entered into a CFA, with a fixed success fee of 12.5%, although he had the benefit of BTE insurance. The Defendant argued that it was unreasonable to pay any part of the success fee under a CFA when the Claimant had BTE insurance. The District Judge allowed the 12.5% success fee as he ruled that he had no discretion to disallow it.

The Court of Appeal held that in CPR Part 45.11(1), the word ‘may’ meant ‘entitled to’ and so didn’t imply that the Court had a discretion to disallow the success fee. The appeal was dismissed.