Judge: Spencer J.
Citation:  EWHC 3570 QB
In a case where liability was admitted, the High Court considered that the appropriate success fee under the pre-1 April 2013 regime, considering all of the relevant litigation risks, was 20%, reduced from the 65% allowed below (and further reduced to 12.5% by CPR 45.9).
The High Court has considered the appropriate level of success fee in a pre-April 2013 CFA, entered into after an admission of liability. The original agreement specified a 100 percent success fee, although the Claimant’s solicitor had argued for a 67 percent uplift on assessment. A 65 percent success fee was allowed. The Court commented that a 100 percent success fee could never be justified when liability had been admitted and there was no Part 36 offer. Having considered the authorities, including C v W  EWCA Civ 1459, the Judge gave guidance on how risk should be assessed. Two fundamental risks should always be addressed: the timing of any anticipated Part 36 offer – only costs incurred from 21 days after the making of the Part 36 offer are at risk; the second risk is from the rejection of a Part 36 offer and subsequent failure to beat it at trial. Following C v W, a 20 percent success fee might be considered the standard or usual percentage where liability had been admitted. The success fee was in fact allowed at 12.5 percent under the previous Rule 45.19(3).