Hosking v Smallshaw, Court of Appeal - Supreme Court Cost Office, March 25, 2009, [2009] EWHC 90137 (Costs)

Resolution Date:March 25, 2009
Issuing Organization:Supreme Court Cost Office
Actores:Hosking v Smallshaw

Neutral Citation Number: [2009] EWHC 90137 (Costs)

Case No: 0806179



Clifford's Inn, Fetter Lane

London, EC4A 1DQ

Date: 25 March 2009

Before :


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Between :

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Mr Richard Wilkinson (instructed by Stewarts Law LLP) for the Claimant

Mr Robert Marven (instructed by Costs Advocates) for the Defendant

Hearing date: 6 March 2009

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Master Simons :


  1. The issue that I am asked to decide is whether or not the success fee to which the Claimant's solicitors are entitled pursuant to CPR 45.16 is 100% or 12.5%.

    The Facts

  2. The Claimant suffered catastrophic injuries following a road traffic accident which occurred on 16th May 2004. Sometime later he instructed Messrs Rowberry Morris to bring a claim for damages against the Defendant. The Claimant entered into a Conditional Fee Agreement with Rowberry Morris dated 28th July 2004. The Defendant's insurers did not admit liability until January 2005 following the Defendant's conviction for driving offences at the Exeter Magistrates' Court. Proceedings were issued in October 2006.

  3. Rowberry Morris continued acting for the Claimant until late in 2006 when the Claimant decided to change solicitors and instructed Stewarts, Solicitors.

  4. On 7th December 2006 the Claimant entered into a Conditional Fee Agreement with Stewarts Solicitors. The relevant parts of the Conditional Fee Agreement (for the purpose of this judgment) read as follows:

    ``Paying us

    If you win your claim, you pay our basic charges, our disbursements and a success fee. You are entitled to seek recovery from your opponent(s) part or all of our basic charges, our disbursements, a success fee and insurance premium as set out in the document ``What you need to know about a CFA''.

    It may be that your opponent(s) makes a Part 36 offer or payment which you reject and, on our advice, your claim for damages goes ahead to trial where you recover damages that are less than that offer or payment. If this happens we will not add our success fee to the basic charges for the work done after the last day for acceptance of the offer or payment.

    Success fee

    The Success Fee is 22.5% of our basic charges, unless your case proceeds to a trial of an issue in which case the success fee will be 100%.

    10% of the above Success Fee relates to the postponement of payment of our fees and expenses and cannot be recovered from your opponent. The Success Fee inclusive of any additional percentage relating to postponement cannot be more than 100% of the basic charges in total.


    The final contested hearing or the contested hearing of any issue to be tried separately and a reference to a claim concluding at trial includes a claim settled after the trial has commenced or a judgment.


    Your claim for damages is finally decided in your favour, whether by a court decision or an agreement to pay you damages. ``Finally'' means that your opponent:

    has made a payment of part or all of your damages or your costs;

    is not allowed to appeal against the court decision; or

    has not appealed in time; or

    has lost any appeal.''

  5. On 10th January 2008 Gerard McDermott QC and his junior, Matthew Phillips, entered into separate Conditional Fee Agreements with Stewarts. The Conditional Fee Agreement relating to Mr McDermott covered work done from 11th December 2006 and the Conditional Fee Agreement entered into with Mr Phillips was stated to cover work done from 28th September 2007. Both Conditional Fee Agreements stated that it was intended that the Agreements had retrospective effect.

  6. I set out below relevant extracts from both of the Conditional Fee Agreements entered into with counsel:

    ``Counsel's success fee

    Counsel's success fee will be 12.5% rising to 75% if the case settles within 21 days of trial and 100% if it settles at trial or after trial has started.

    The reasons, briefly stated, for Counsel's success fee are set out in his risk assessment.

    Part 36 Offers and Payments

    If the amount of damages and interest awarded by a court is less than a Part 36 payment into Court or effective Part 36 offer then:

    1) If Counsel advised its rejection he/she is entitled to normal and success fees for work up to receipt of the notice of Part 36 payment into Court or offer but only normal fees for subsequent work;

    2) If Counsel advised its acceptance he/she is entitled to normal and success fees for all work done.

    Counsel's risk assessment for CFA purposes

    The overall risk is comparatively low and in fact it appears to me that the appropriate course is to enter into a CFA in which the uplifts are the standard ones provided by 45.17 where the case is allocated...

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