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Costs - retrospective success fee - CFA
11 December 2015
Mrs Justice Patterson DBE sitting with Assessor Master O’Hare
An appeal regarding whether retrospective success fees are permissible. The appeal was allowed on the basis that the judge had erred in concluding that risk had materially changed between the time the CFA was entered in to and the earlier application for legal aid.
This appeal concerned the cost decision of Master Simons who refused to allow the claimant’s retrospective success fee on the basis that the risks had changed between July when public funding was applied for and December when the CFA was entered into.
The claimant submitted that it was reasonable for the CFA to be entered into when they did due to the delays by the Legal Services Commission in granting legal aid. They had acted in their client’s best interests as at the time there was no reason to believe public funding would not be forthcoming. The chances of success at the time legal aid was applied were between 60 and 80%.
By contrast the defendant submitted that the test was whether it was reasonable for the claimant to enter into a retrospective success fee agreement and the Master had correctly weighed the arguments at the first instance hearing. The Master concluded that the correct test on appeal should be drawn from Lord Neuberger’s judgment in Motto v Trafigura.Article continues below...
Provides a practical overview of the changes to costs and funding
Although the defendant submitted the prospects of success had altered, a prospects assessment of 65% by counsel in December clearly falls within the bracket of 60-80% ticked by the claimant’s solicitors in July for their legal aid application. The Master also concluded that the timing of receipt of the skeleton argument was immaterial as it was received after counsel signed the CFA. Therefore nothing had changed in relation to that document in regards to risk and it was incorrect for the Master to conclude that prospects of success had altered between July and December as there was no evidential basis to support this before him.
In addition the court also noted that the presence or absence of prejudice to the defendant is not necessarily fundamental to the Master’s determination and how much weight should be given to this is a matter for the decision maker.
This is a positive decision as it reaffirms the position that claimants’ solicitors should always be alive to differing funding options and are able to adapt to changing circumstances without being penalized in costs.
Sandra De Souza and Amy Wedgwood, Anthony Gold Solicitors