In Patterson v MOD,34 the court had to decide whether the non-freezing cold injury (NFCI) sustained by the claimant is a disease contracted within the meaning of Section V of the CPR 45. Defining an injury as a disease is of course important as the fixed success fees awarded in such cases are higher than in other non disease employers’ liability cases. The claimant contended that the injury was a ‘disease’ and so fell within section V thus attracting a fixed success fee of 62.5%. The defendant on the other hand contended it was in fact a ‘bodily injury’ and so fell within section IV of the CPR and so attracted a success fee of 25%.

The court held that the term ‘disease’ in CPR 45 must be given its natural and ordinary meaning. On this basis, NFCI was not a disease either as a matter of ordinary language or pursuant to Section V of CPR 45. The court went on to give some guidance for future cases, namely that where disputes arise as to whether a particular condition can be characterised as a disease there is no single test or definition that can be applied. Instead it will be necessary to apply the natural and ordinary meaning of the word and in cases which are near the borderline, to form a judgment by taking into account the various factors that point one way or the other.

In the case of Tinseltime v Roberts,35 the court considered an application for a non-party costs order brought pursuant to section 51 of the Senior Courts Act 1981 against a solicitor who acted under a conditional fee agreement for an impecunious client with no ATE insurance. While this case is not concerned with personal injury it may nevertheless be of interest to all those who act for or against litigants funded by way of a CFA. The solicitor agreed to pay disbursements for the case on the understanding that he would only be reimbursed if the claim was successful. The defendant submitted that the solicitor had controlled the litigation, funded the litigation as a business venture for his own financial benefit and should therefore be treated in the same way as a commercial funder. The court held that on the facts of the case, the solicitor had not controlled the litigation. It further held that the fact that a solicitor acting under a CFA would benefit financially from the success of litigation was not of itself sufficient for such an order to be made, even where the solicitor is funding the disbursements, knows the client is impecunious and there is no ATE cover in place. Something more is required.

Lastly, Mr Mackay J gave judgment in the case of Khans Solicitors v Chifuntwe36 on an application brought by the solicitors for declaratory relief in the Senior Courts Costs Office that the amount of costs and disbursements in a claim in which the solicitors had acted for the first defendant had not been agreed between the first and second defendants and further that the solicitors were entitled to a charge securing their interests in the first defendant’s unpaid fees.

The underlying litigation between the first defendant and the second defendant had been settled on terms where the second defendant agreed to pay the first defendant’s costs. In the midst of the costs negotiations, the first defendant wrote to the second defendant informing them that he was no longer instructing the claimant solicitors and was acting in person. In the same letter the first defendant accepted the second defendant’s offer on his costs (at 30% less than had been claimed). The second defendant paid over the money to the first defendant. The court held that for the claimant’s application to succeed it would have to show that there had been some intention on the part of the paying party to defeat the claimant’s lien over the first defendant’s costs in paying the costs over to the first defendant. The costs master had therefore been quite right to dismiss the application at first instance.