| COSTS — Conditional fee agreement — Road traffic accident — Payment into court declined — Claimant failing to exceed such payment at hearing — Defendant’s solicitors awarded 100 per cent success fee because “claim concludes at trial” — Whether any discretion in court to award lesser success fee — CPR Pts 36, 44, 45
Lamont v Burton [2007] EWCA Civ 429
CA: May, Dyson and Smith LJJ: 9 May 2007
In a road traffic accident claim the claimant’s solicitors, operating under a conditional fee agreement providing for a success fee, were entitled to a 100 per cent success fee under CPR Pt 45 where the claimant had won at trial, even though he failed to exceed an earlier payment into court. There was no discretion to award a lesser increase.
The Court of Appeal so held when dismissing the appeal of the defendant, James Burton, from a decision of Judge Tetlow, sitting in the Altrincham County Court on 11 July 2006, dismissing the defendant’s appeal from a decision in the same court of Deputy District Judge Buckley on 13 September 2005. The deputy district judge had held, when giving judgment for the claimant in a road traffic accident claim, that, notwithstanding the claimant’s failure to exceed a payment into court under CPR Pt 36, the claimant’s solicitor, who acted under a conditional fee agreement providing for a success fee, was entitled to a 100 per cent success fee by virtue of CPR Pt 45, which provides for fixed recoverable costs in road traffic accident cases. By r 45.16 “The percentage increase which is to be allowed in relation to solicitor’s fees is — (a) 100 per cent where the claim concludes at trial; or (b) 12.5 per cent where (i) the claim concludes before a trial has commenced; or (ii) the dispute is settled before a claim is issued”. The deputy district judge and the judge each held that the court had no discretion to award a different success fee. On appeal the defendant contended that policy considerations as well as regard to CPR r 44.3 led to the opposite conclusion and a lesser success fee should have been awarded in light of the claimant’s rejection of the payment into court.
DYSON LJ, giving the judgment of the court, said that the question was whether the 100 per cent success fee was mandatory in all cases, or whether, as the defendant claimed, there was a discretion to vary it, and, if so, whether such discretion should have been exercised in this case. The conclusion was that there was no discretion to award the claimant a success fee of less than 100 per cent and, as found by the judge, the general discretion provided by CPR Pt 44 had to give place to the particular case where discretion was by the very words used excluded; and there was no discretion within CPR r 45.16 itself to award different percentage increases from those stated in the rule. Thus what the court could not do under CPR Pt 44 was to circumvent the mandatory provisions of CPR Pt 45, viz by awarding 12.5 per cent instead of the 100 per cent fee prescribed by CPR r 45.16. The court added that it would be a matter for the Rule Committee and the Civil Justice Council whether to amend CPR Pt 45 to make special provision to deal with the CPR Pt 36 issue.
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