Herbert v HH Law Limited [2019] EWCA Civ 527



Judge: Lindblom LJ and Asplin LJ

Citation: [2019] EWCA Civ 527

Assessment of solicitor and own client costs – CPR 46.9(3)

Summary:

The Court held that the overall burden of showing that informed consent had been given for a CFA and success fee was on the solicitor. Further there is no established practice of treating ATE insurance as a disbursement.

Longer Text:

The Court of Appeal considered the meaning and application of CPR 46.9(3) in relation to assessment of solicitor and own client costs. The firm of solicitors had acted for a Claimant on a personal injury claim and entered into a CFA which provided for a success fee of 100%, subject to a cap of 25% of damages. The issue before the Court was whether the client had expressly or impliedly approved the success fee so as to give rise to the presumption in CPR 46.9(3) that it was reasonably incurred and reasonable in amount. The Court of Appeal held that “approval” meant approval given following a full and fair explanation to the client. The overall burden of showing that informed consent had been given was on the solicitor. The appeal failed. The second issue before the Court of Appeal was whether the costs of After the Event insurance was properly to be treated as a solicitor’s disbursement liable to assessment under Section 7 of the Solicitors Act 1974. The Court held there was no established custom of treating it as a disbursement.

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