Oliver v Whipps Cross University Hospital NHS Trust & Anor [2009] EWHC 1104 (QB) (21 May 2009)

This was a clinical negligence matter where the prospects of success were judged to be 50% at the time the risk assessment was made and with limited evidence available. Therefore, the success fee had been set at 100%. During the course of the claim, following investigations, the Defendant admitted liability, but not for the original grounds of the claim, as these had proved to be unfounded. The claim settled before trial.

At detailed assessment, Master Campbell reduced the success fee to 67%. This was on the basis that the prospects of success, according to Master Campbell, must have been 60% as the claim would not have been taken on unless there was a more than 50% chance of success.

On appeal, Mr. Justice Jack allowed the 100% success fee, accepting the Claimant’s Solicitor’s assessment of the prospects of success of 50%. A Solicitor was entitled to rely on the prospects of success at an early stage so that the success fee could be assessed, despite being in a relative position of ignorance, without medical records and expert advice.