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Costs Update - Corrigan v Fairminer SCCO 6 June 07
Successful reduction of success fee on apparent hopeless claim
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Robin Darby, Head of Costs at Shakespeare Putsman, has been successful in reducing a success fee from 80% to 67% on detailed assessment.

The claim related to a window cleaner who fell from a first floor window sustaining spinal and head injuries and recalled nothing of the fall. There was no factual evidence as to how he fell. To succeed, the Claimant had to prove breaches of Health and Safety regulations. However access to inspect the property where the incident occurred was refused by the owners, who were also potential defendants to the claim. Liability was ultimately agreed on a 50/50 basis between the claimant and his employer and the Claimant received £800,000 damages after the reduction for contributory negligence.

The matter proceeded to detailed assessment on a number of issues, including the question of the appropriate success fee. The Defendant argued that that the issues in this claim related to breach of the Health and Safety Regulations. On the basis of current case law, there had to be a reasonable chance of success. The Claimant's solicitors spent fourteen hours investigating the claim prior to entering into the CFA, and therefore should have assessed the risk of succeeding at 65% with a success fee of 54%.

The Claimant submitted that the success fee of 80% was reasonable prior to entering the CFA in 2002, and reflected the knowledge the Claimant's solicitors had at the time. They had not spoken to all the witnesses and had not visited the scene of the accident. All they had to go on was claimant's limited account and it was therefore a very risky case. It was accepted that as the Claimant's solicitor was a specialist in these types of personal injury cases, the chance of success was more than 50/50 (which would have equated to 100% success fee), which might ordinarily have been the case,and therefore a success fee of 80% was reasonable.

In addition, liability had been denied. It had also been denied that the Claimant was as severely injured as maintained, and it was also alleged that the Claimant's employer was looking to fire the Claimant in the near future anyway.

In the course of proceedings the Defendant paid £600,000 into court, and their case was the maximum they should pay was £750,000 even though the case eventually settled for £800,000. The Claimant submitted that these factors meant there was a significant risk on quantum for the Claimant as well and therefore the 80% success fee was justified.

Master Campbell held that taking into account the facts and circumstances, the Claimant was likely to succeed on primary liability, but with significant contributory negligence. He assessed the prospect of success at 60% or higher, and accordingly allowed a success fee of 67% instead of the 80% claimed.

A second issue arose as during the course of the claim, the Partner with conduct moved firms.The original CFA was not assigned, and a new CFA was entered into. The success fee was assessed at the time of the second CFA as also being 80% on the same facts as the original CFA . The Defendant argued that by this time, further investigations into liability had taken place, and the Claimant also had the benefit of leading counsel's advice so therefore the prospects of success were better. The Master did not accept these submissions as by the date of the second CFA, the Defendant insurers had also filed a defence disputing liability in full and accordingly assessed the success fee on the second CFA at 67% as well.
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How to find out more

Questions? Please email Robin Darby or call 0121 237 3019. To unsubscribe to our costs update service please with 'unsubscribe me' in your subject box.
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