Expert Witness Journal Issue 67 June/July 2026 - Flipbook - Page 70
8.
A 昀椀nding was made that the Litigation Friend
did not give fully informed consent to the
charging model (§18), as explained further
below at §22 below. The Court carried out a
summary assessment on the indemnity basis
of the reasonably incurred and reasonable in
amount solicitor and own client costs.
9.
The Court concluded that the case could and
should have been run by the Grade D fee earner
with supervision from a Grade B fee earner and
the reasonably incurred time would have been
15 hours at Grade D and 2 hours at Grade B
(§27). The base costs should have been no more
than £3,000.
not do so. The only possible risk of an adverse
costs order was in the event of failing to beat
a Part 36 o昀昀er but given that approval by the
Court was always going to be required, that
risk was “practically non-existent and certainly
didn’t justify the expense of a premium to be
calculated as 10% of the recovered damages +
IPT of £1,100” (§29).
15. Practitioners should consider the risks to the
claimant that the ATE premium is seeking to
reduce and what costs the opponent has told the
claimant to incur and/or has agreed to pay in
the context of the facts of each case. There will
of course be claims where ATE premiums are
justi昀椀able, but they may be di昀케cult to justify in
the more straightforward and lower risk cases
with a CFA in place.
10. The deduction of the ATE premium was
disallowed (§29) and the appropriate deduction
of additional liabilities from the Claimant’s
damages was limited to a success fee of 11%
(totalling £330 plus VAT) (§28).
CFA success fees
16. When calculating the appropriate CFA success
fee, the Court will consider the appropriate
level of pro昀椀t costs charged by the solicitors and
whether these have been reasonably incurred
and whether they are reasonable in amount.
That 昀椀gure is then multiplied by the appropriate
percentage success fee based on the risk of losing
the case (§4). When assessing the appropriate
percentage, the Court has to consider any risk
assessment undertaken by the solicitors and
whether that was reasonable given the state
of knowledge about the case at the time the
assessment was carried out. The 昀椀gure is then
compared with 25% of the recovered damages
for pain and su昀昀ering and loss of amenity and
any past special damage loss. If it exceeds 25%
of the damages, the success fee is then capped
at that 昀椀gure. If the calculated 昀椀gure is less
than 25% of the damages to be awarded, then
that lower 昀椀gure represents the success fee. It
is strongly recommended that practitioners
carry out a risk assessment when calculating the
success fee and that clients see the assessment,
are advised on it and that they approve the
success fee with that in mind. If a risk assessment
is not carried out, practitioners should be able
to demonstrate how they calculated the success
fee and how the client’s approval was obtained.
Per Herbert v H H Law Ltd [2019] EWCA Civ
527, if a risk assessment was not undertaken,
the solicitor needs to obtain informed consent
from the client to satisfy CPR 46.9(3) (per §38
of that judgment). Such informed consent was
informed approval given following a full and
fair explanation to the client (per §37 of that
judgment).
Analysis
11. District Judge Lumb stated that “[i]t would
appear that from time to time, and perhaps with
surprising regularity, both practitioners and
members of the judiciary have not applied the
correct tests in dealing with these issues” (§2).
The remainder of this note provides a summary
of the practical points that should be borne
in mind in personal injury claims brought on
behalf of children when dealing with: (a) ATE
premiums; and (b) success fees, as highlighted
in the judgment.
ATE premiums
12. So far as ATE premiums are concerned, these
are either to be allowed in full or disallowed
unless judges have before them evidence
from actuaries or insurance underwriters as
to appropriate levels of premiums (§3). Such
expert evidence is rarely, if ever, produced.
13. When determining whether or not to allow the
deduction of an ATE premium from a child’s
damages, the Court will consider whether it was
an expense which was reasonably incurred.
14. The Court asked what risk there was to insure
against where the solicitors’ own client pro昀椀t
costs are covered by the CFA. The Defendant’s
Claim Handling Agents had told the Litigation
Friend that a Court hearing was necessary, so
there was said to be no risk of failing to recover
that. The Claims Handlings Agents had also
explained that a medical report was required
and that the Litigation Friend should instruct
solicitors to obtain one, which she did. All
disbursements were paid by the Defendant as
part of the proposed settlement and the Court
found that there was no real risk that they would
EXPERT WITNESS JOURNAL
17. The Court found that a success fee of 100% could
not be justi昀椀ed in this case given the minimal
risks involved in the case being unsuccessful
(§28). Allowing for the minimal risks involved
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