Arlene Fortune v Jonathan Roe
| Jurisdiction | England & Wales |
| Judge | Sir Robert Nelson :,SIR ROBERT NELSON |
| Judgment Date | 10 November 2011 |
| Neutral Citation | [2011] EWHC 2953 (QB) |
| Docket Number | Case No: HQ07X545 |
| Court | Queen's Bench Division |
| Date | 10 November 2011 |
[2011] EWHC 2953 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Robert Nelson (Sitting as a Judge of the High Court) Sitting with Assessors
Case No: HQ07X545
Nicholas Bacon QC (instructed by Irwin Mitchell) for the Appellant
Roger Mallalieu (instructed by Lamport Bassitt) for the Defendant
Hearing date: 14 th July 2011
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This is an appeal by the Claimant against the order of Costs Judge Master Campbell made on 4 November 2010 in which he held that the success fee claimed under a Conditional Fee Agreement should be 20% rather than the 100% claimed by the Claimant.
The Facts
On 8 December 2001 the Claimant was involved in a serious car accident on the A421 road near Milton Keynes. The vehicle being driven by the Defendant in the opposite direction veered on to the Claimant's side of the carriageway and collided head-on with her vehicle. As a consequent, she sustained very serious injuries; closed head injury, fractured spine at C1/C2, fractured right humerus associated with radial nerve palsy, fractured pelvis, open fractures of the right tibia, right femur and fibular, fractures to the ribs, knee caps, sacrum, wrist, laceration and soft tissue injuries including degloving injury to the left leg.
The Claimant consulted Irwin Mitchell. Her claim was initially covered by a before the event insurance policy but, when the limit of indemnity was reached, she entered into a Conditional Fee Agreement on 3 February 2006.
The trial date was ultimately set at 30 March 2009, but the claim was settled on 12 March 2009 when the Claimant accepted a Part 36 offer made by the Defendant on 20 February 2009 in the sum of £600,000 less CRU, plus costs on the standard basis, to be assessed if not agreed.
The key dates, which are set out in Master Campbell's judgment, are as follows:
• 8 December 2001 – the road traffic accident;
• 27 January 2003 – criminal conviction of Defendant for dangerous driving;
• 27 March 2003 – liability admitted;
• 11 September 2003 – offer to settle by Defendant (not under Part 36) in the sum of £250,000;
• 14 January 2005 – proceedings served;
• 10 March 2005 – defence served admitting negligence, but denying that the Claimant had sustained a head injury;
• 6 April 2005 – judgment entered for damages to be assessed;
• 3 February 2006 – CFA signed;
• 28 September 2007 – Defendant offers £475,000 less CRU;
• 31 January 2008 – round table meeting; "informal" offer of £600,000 from Defendant;
• 3 March 2008 – trial listed for 10–12 March 2008 vacated; trial listed for 30 March 2009;
• 4 April 2008 – Part 36 offer by Claimant in sum of £800,000 less CRU;
• 20 February 2009 – Defendant's Part 36 offer in the sum of £600,000 less CRU;
• 12 March 2009 – offer accepted;
• 16 July 2009 – consent order made by Master Eyre;
• 12 October 2010 – detailed assessment proceedings head by Master Campbell;
• 4 November 2010 – the decision under appeal by Master Campbell.
Master Campbell granted permission to appeal on 24 November 2010.
The Conditional Fee Agreement
The relevant clauses are as follows:
" Your Conditional Fee Agreement
For Use in Road Traffic Accident cases.
What is covered by this Agreement
• The work done in pursuing your claim for damages for personal injury suffered in the course of an accident on 8 December 2001 insofar as your legal costs exceed the limit of the indemnity under the terms of your legal expenses insurance policy issued by Churchill Insurance …
Explanation of Words
….
Paying Us
If you win your claim:
• You are primarily liable to pay our basic charges, success fee, your disbursements, after the event insurance premium and VAT.
•….
If you are not entitled to recover part of the costs of the claim (e.g. —because you are unsuccessful in some aspects of your claim), then you will not be liable for that part of our basic charges or success fee.
…
Success Fee
The Success Fee will be:
(a) if you win your claim prior to 3 months before the date fixed for the trial or the first date of the trial window (whichever is the earlier) 25% of the basic charges; or
(b) if you win your claim at any later date or time: 100% of the basic charges; or
(c) if Rules of Court fix the percentage success fee recoverable from your opponent this will be the percentage which shall apply.
Whichever applies above the whole of the success fee relates to the risks involved in your case and no part thereof relates to the cost of postponement of payment of our legal fees and expenses. The reasons for setting the success fee at the above levels are set out in Schedule 1 attached to this Agreement."
Law Society Conditions
The attached Law Society conditions (which have been modified by Irwin Mitchell) are part of this agreement …
SCHEDULE 1 – Reasons for Level of Success Fee
…
The percentage success fee shown at (a) above reflects our assessment of the risks of your case, based purely on the information available to us at the time of entering into this agreement. This includes those specific issues which we regard as relevant and appropriate to take into account and which are set out in the table below:
The percentage success fee shown at (b) above reflects all of the risks in the table below which would be enhanced considerably should your case not settle prior to three months before trial. The enhanced risks at trial are due to the potential risk of failing to establish one or more fundamental elements of your case in respect of which the Judge prefers the opponent's evidence, and also the significant risk that you may fail to beat an offer or Payment into Court made by your opponent (see Condition 3(k) – Part 36 Offers or Payments of your Agreement)."
The risks are then set out in tabular form. The type of accident, and the issues of liability, contributory negligence and documents available, are classified as low risk; the Claimant's evidence, causation, quantum and expert evidence classified as medium risk; and Part 36 offer classified as high risk. It is noted that liability has been conceded and judgment entered in the Claimant's favour, that there is no allegation of contributory negligence, that there may be an issue as to the extent of the Claimant's head injuries which are presently yet to be fully assessed, and that there are several variables on the issue of quantum including issue of the Claimant's residual earning prospects, the care claim, the orthopaedic prognosis of the head injuries. The possible risk is described as relating to an effective Part 36 payment into court on quantum issues. It is noted that there had been no Part 36 offers to date.
"Law Society Conditions"
3. Explanation of Words Used
…
(b) Basic charges– Our charges for legal work we do on your claim for damages.
(c) Claim– A claim is your demand for damages for personal injury whether or not Court proceedings are issued.
…
(e) Damages– Money that you win whether by a Court decision or settlement.
….
(j) Lose– The Court has dismissed your claim or you have stopped it on our advice.
(k) Part 36 offers or payment– This is an offer by your opponent(s) to settle your claim made strictly in accordance with Rules of Court and which has certain consequences for recovery of legal costs. If your opponent(s) makes a Part 36 offer or payment to settle your claim then:
• If you accept – the effect is that you have won your claim against that opponent (subject to Condition 4 below)
• If you reject and continue to pursue your claim and either by settlement or trial you are awarded more, the effect is that you have won your claim (subject to Condition 4 below).
• If you reject and supported by our advice you continue to pursue your claim, but you recover damages that are less than the sum offered or paid by your opponent(s), we will not charge you our basic charges or success fee for the work done after the expiry of 21 days following receipt of the notice of the offer or payment. We will charge you our basic charges, success fee, VAT, disbursements and insurance premium for the work done before that date, which you should be entitled to recover from your opponent(s). The legal costs payable will not be limited by reference to the amount of damages which may be recovered on your behalf. Your opponent(s) will be entitled to an order for costs against you but you may be covered for this risk by your insurance policy.
(m) Success fee– The percentage of basic costs that we add to your bill if you win your claim for damages.
(n) Win– Your claim for damages against your opponent or if your claim is against two or more opponents against any one of them, is finally decided in your favour, whether by a court decision or an agreement to pay your damages. This applies even if your claim has not succeeded against one or more of your opponent(s). "Finally" means that your opponent(s):
• is not allowed to appeal against the Court decision; or
• has not appealed in time; or
• has lost any appeal.
4. What Happens if You Win
If you win:
• You are then liable to pay all our basic charges, success fee, VAT, your disbursements and insurance premium …
• You will be entitled to recover our basic charges, success fee, VAT, your disbursements and insurance premium from your losing opponent provided these are reasonable and proportionate to the value of your claim."
There are two attendance notes prepared by the fee earner from Irwin Mitchell making the Conditional Fee Agreement risk assessment. In the first it was noted that liability had been conceded and judgment...
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