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Success Fees: Has Your Trial 'Commenced'?

Whether or not your Trial is deemed to have commenced can have a significant impact on the level of success fee which you can recover, particularly where the percentage uplift is fixed by the CPR.

Where a claim1 arises following a Road Traffic Accident2, an Employer's Liability3 or an Employer's Liability Disease matter4 and a Conditional Fee Agreement5 has been entered, the successful party is often entitled to recover a success fee. The amount which can be recovered from the Paying Party is fixed by Part 45 of the CPR.

The following table shows the fixed success fees which can generally be recovered by Solicitors at the different stages of a claim:

Solicitor's Fixed Success Fee Table

Type of Claim Settlement Achieved
Prior to Trial
Settlement Achieved after Trial Commenced or by Judgment
CFA CCFA
Road Traffic Accident 12.5% 12.5% 100%
Employer's Liability 25.0% 27.5%
Employer's Liability Disease – Type A 27.5% 30.0%
Employer's Liability Disease – Type B 100%
Employer's Liability Disease – Type C 62.5% 70.0%


The following table shows the fixed success fees which can generally be recovered by Counsel at the different stages of a claim:

Counsel’s Fixed Success Fee Table

Type of Claim Pre
Allocation
Fast Track Multi Track Settlement afterTrial Start/by Judgment
More than 14 days to Trial Less than 14 days to Trial More than 21 days to Trial Less than 21 days to Trial
Road Traffic Accident 12.5% 12.5% 50.0% 12.5% 75.0% 100%
Employer's Liability 25.0% 25.0% 50.0% 25.0% 75.0%
Employer's Liability Disease - Type A 27.5% 27.5% 50.0% 27.5% 75.0%
Employer's Liability Disease – Type B 100%
Employer's Liability Disease – Type C 62.5% 62.5% 62.5% 62.5% 75.0%


There are exceptions to the fixed success fees, and an application can be made for an alternative percentage increase in limited circumstances6, however, be careful because sanctions can be applied in the event that the success fee fails to be assessed at sufficiently higher/lower than the fixed fees!7

Part 45 of the CPR dictates that a reference to a claim concluding at Trial is a reference to a claim concluding by settlement after the Trial has commenced or by Judgment; however, issues have been caused by the terminology in respect of a Trial being 'commenced', particularly when settlement is achieved just before the case starts.

The following cases are useful to consider when contemplating whether your Trial will be deemed to have started:

Amin & Anor v. Mullings & Anor [2011]11

  • Court: High Court of Justice, Queen's Bench Division: Birmingham Civil Justice Centre
  • Judge: Mrs Justice Slade DBE
  • Circumstances: the Claim involved a Road Traffic Accident to which Part 45 of the CPR applied. The Claimants had originally initiated the Claim following the accident and the Defendant had counterclaimed. Liability was in dispute with each party blaming the other. Eventually a 50/50 split on liability managed to be agreed between the parties. Prior to the Trial commencing, the Claimants settled their claim on both the issues of liability and quantum. The Defendants had settled their counterclaim bar the issue of the hire vehicle which was determined by the Court. The Defendant appealed the cost decision of the Recorder to allow both parties 100% success fee.
    Considerations: it was clear that the Defendant was entitled to a 100% success fee on both the Solicitor's and Counsel's fees of the counterclaim. Consideration was given to the definition of 'Trial' and whether it had 'commenced'. Furthermore, consideration was given to the nature of the Claimant's claim in relation to the Defendant's counterclaim and whether the counterclaim was a distinct and separate claim. Both the cases of Sitapuria and Dahele were considered.
  • Held: the language of CPR 45.17(1)(a) was found to be the same as that of CPR 45.16(1)(a). There was no reason to distinguish it from the clear meaning of that provision. A 100% uplift to Counsel’s fees applied where the claim concluded by settlement after the Trial has commenced or by judgment. It did not apply where a settlement was reached before the Trial commenced even if it was achieved on the date fixed for the trial. The Judgement in Sitapuria was approved whilst that in Dahele was not followed. Additionally, the fact that the counterclaim was determined at Trial did not mean that the claim should also be regarded as determined at Trial. The Claimant's success fees were reduced accordingly.

Whilst it is clear that there is a slight divergence of judicial views on the matter, it would seem that it certainly leans towards a Trial having to be properly opened for the determination of an issue if a party is to be successful in recovering 100% success fee under the fixed costs regime.

1 Which is not a claim which would be allocated to the Small Claims Track

2 Where the accident occurred after 6th October 2003 and Sections II and VI of Part 45 do not apply

3 Where the accident occurred after 1st October 2004

4 Where the letter of claim containing a summary of the facts on which the claim has been based was sent after 1st October 2005

5 As per the definition contained within Rule 43.2(1)(k)(i) of the CPR

6 See Rule 45.18 for Road Traffic Accidents, Rule 45.22 for Employer's Liability Claims and Rule 45.26 for Employer's Liability Disease Claims.

7 For further information, please see our article: Success Fees: How Fixed Are You?

8 EWHC 90072 (Costs)

9 Unreported, 10th December 2007

10 EWHC 90177 (Costs)

11 EWHC 278 (QB)