Expert Witness Journal Issue 67 June/July 2026 - Flipbook - Page 71
and taking into account the deferment of not
being able to charge until the conclusion of the
case, a more realistic assessment of the prospects
of success was found to be 90% which applying
the ready reckoner equated to a success fee of
11%. The Court concluded that the appropriate
success fee would be 11% of £3,300 (ie the base
costs that were decided at §27 and referred to
at §9 above), which totals £330 plus VAT (§28).
22. Reference is made to a witness statement
included in the bundle for the original approval
hearing of the Litigation Friend “which was
clearly a template statement prepared by the
solicitors and not in her own words and therefore
to be viewed with some degree of caution as its
contents were obviously designed to be selfserving for the solicitors about the choice of
funding model and ATE insurance” (§18). It
is further noted that it was clear to District
Judge Lumb that the Litigation Friend “didn’t
really understand what was in the statement or
its meaning and e昀昀ect and that she had been
conditioned to expect that 25% of [the child’s]
damages would be deducted for the success fee
as the norm” (§18). This is a helpful reminder
of the need to comply with the requirements of
CPR 21 in proceedings involving children and
protected parties, and to ensure that clients
receive information in a way that they can
understand and that they are in a position to
make informed decisions about the services they
need. Speci昀椀c reference is made to the Warning
Notice published by the Solicitors Regulation
Authority on 28 January 2026 regarding “nowin, no-fee” and other fee arrangements in
high-volume consumer claims, available here, at
§§22-24 and 31-32. Costs and fee arrangements
can be complex and confusing for many clients.
Practitioners should ensure that information
on the success fee is provided in a clear and
comprehensive way before a client signs the
terms of agreement, and such documentation is
available to be relied upon in Court if needed.
If oral advice is given, practitioners should keep
a written record of this to demonstrate that
informed consent was given. Success fees must
also be justi昀椀able, fair and reasonable.
18. The Court noted that where practitioners often
appear to have fallen into error is to assume
that the success fee will always amount to 25%
of the relevant damages. If that was the correct
approach, it would risk being a contingency
fee which is unlawful and irrecoverable (§5).
The cap of 25% should not be regarded as the
default success fee and it may well be di昀케cult to
justify in low-risk claims.
19. Another common error by practitioners that
was noted is where details of the solicitor and
own client base costs are not produced (§5). This
prevents the Court from being able to calculate
an appropriate success fee and would lead to no
success fee being deducted from the damages.
To avoid this, su昀케cient details of the pro昀椀t costs
should be provided to the Court to justify the
reasonableness of those costs.
20. The judgment also refers to a reported common
error made by judges when assessing the
appropriate success fee, namely expressing the
appropriate success fee as a percentage of the
damages, rather than assessing the risk of losing
the case (§6). It is important for practitioners
to ensure that the success fee in the CFA is
recorded as a percentage uplift of the amount
that would be payable if there was no CFA, as
opposed to a percentage of the damages.
Conclusion
23. The postscript to the judgment notes that “[s]
olicitors who are acting in this way [ie where
costs are arti昀椀cially in昀氀ated to ensure that the
25% cap was always reached] through their
business models have been warned that the
Courts will remain vigilant and the next step
may well be investigation by the SRA given
the Warning Notice of January 2026” (§32).
This judgment serves as a useful reminder of
ensuring that practitioners are acting in their
clients’ best interests.
21. District Judge Lumb refers to a “disturbing
trend amongst some solicitors to sign clients up
to hourly rates which are signi昀椀cantly higher
than the guideline hourly rates provided by the
SCCO and claim to have recorded time far in
excess of what could be objectively considered
to be reasonably incurred and reasonable in
amount” (§7). This results in the base pro昀椀t costs
being signi昀椀cantly higher than reasonable and
“inevitably draws suspicion that this practise is
deliberately designed to ensure that no matter
what percentage success fee the court may assess
as being reasonable (often signi昀椀cantly less than
the permissible maximum of 100%) the 25% cap
on deduction from the damages will always be
reached”. This judgment is a useful reminder
of the need to ensure that fees are reasonably
incurred and reasonable in amount to the claim
that is being pursued. Further, hourly rates
should re昀氀ect the complexity of the case.
EXPERT WITNESS JOURNAL
69
JUNE 2026
