Hill Dickinson has successfully challenged a significant success fee where there was a criminal conviction prior to the intimation of a civil claim.
In 'TMJ', Master Rowley significantly reduced not only the claimant’s overall costs but also, more particularly, the success fee.
The claimant pursued damages arising from alleged sexual and psychological abuse. The claim was settled and the defendants agreed to pay the claimant’s reasonable costs. The original bill presented by the claimant’s solicitors, AO Advocates, amounted to £196,124.45, including a success fee of 100%.
We argued on behalf of the defendants that the success fee was too high and ought to be reduced to 33%. We contended that for the claimant’s solicitors to recover a success fee of 100% they needed to establish that there was only a 50% chance of success at the time the conditional fee agreement was signed. We also argued that in fact there had been a very substantial likelihood of success based upon the evidence that was available at the point at which the relevant risk assessment and a statement of reasons had been prepared. Most notably, prior to the civil claim the abuser had been convicted of having sexually assaulted the claimant. That was clearly a fundamental factor to take into account in any risk assessment. We argued that whatever other litigation risks might have been apparent, the claimant’s solicitor would have viewed the claim as one that was very likely to succeed on liability. In addition to this, the statement of reasons was not sufficiently case-specific in that it was not supported by the claimant’s solicitor’s intake form and had been prepared retrospectively.
In deciding that the success fee ought to be significantly reduced, Master Rowley noted that this was not a case where a 100% success fee could be justified. The matter was initially conducted by a handler who was very well versed in what to ask prospective clients, and notes from the initial consultation contained positive indications that this was the type of case the claimant’s solicitors were looking for. Relevant contemporaneous emails also confirmed that the initial liability assessment was positive. Limitation was a risk but nothing more than that. The claimant had a very good and reliable memory and could recite specific and significant information. The overall likelihood was that this was a strong case in which it was certain that the claimant would recover damages at some level. A review of similar claims would have resulted in a good assessment of the risk. And most significantly of all, the claimant had the benefit of a relevant, recent conviction. Based on these points Master Rowley decided that 33% was an appropriate success fee for both solicitor and counsel.
We also persuaded the court to reduce the bill significantly in other areas. The ATE premium was slashed from £10,238 to £5,858. Overall the bill was reduced by 58% from £196,124 to £81,500.
The guidance that has been secured in this case on success fees is extremely helpful in the context of assessing additional liabilities in the considerable volume of pre-LASPO claims that remain to be resolved.