Proposals for Reform of Civil
Litigation Funding and Costs in
England and Wales
Kennedys’ response to the implementation of
Lord Justice Jackson’s recommendations
14 February 2011
Table of contents
LEGAL ADVICE IN BLACK AND WHITE .........................................................1
PREAMBLE.........................................................................................2
SECTION 2.1 - CONDITIONAL FEE AGREEMENTS AND SUCCESS FEES .....................7
SECTION 2.2 - AFTER THE EVENT INSURANCE PREMIUMS................................ 14
SECTION 2.3 - 10% INCREASE IN GENERAL DAMAGES ..................................... 19
SECTION 2.4 – PART 36 OFFERS ............................................................. 22
SECTION 2.5 – QUALIFIED ONE WAY COSTS SHIFTING (QOCS) .......................... 25
SECTION 2.7 – ALTERNATIVE RECOMMENDATIONS ON RECOVERABILITY .............. 29
SECTION 2.8 – PROPORTIONALITY........................................................... 30
SECTION 2.9 – DAMAGES-BASED AGREEMENTS (DBAS) ................................... 33
APPENDIX 1A ................................................................................... 36
APPENDIX 1B ................................................................................... 37
APPENDIX 2 ..................................................................................... 39
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Page 1 of 39
Preamble
As practitioners and on behalf of our clients, we have real concerns about
disproportionate costs in our Civil Litigation system. These excessive costs have, in
our view, been largely caused by the recoverability of success fees and ATE
insurance premiums. Given that costs are so high and frequently outstrip damages
by a significant margin, they have come to be at the forefront of decision-making
in litigation, which must be to the detriment of fairness and access to justice
considerations. We do not believe the present system of recoverability of
additional liabilities is a sustainable system.
We also believe the emergence of CFAs and recoverability has harmed longstanding principles in relation to costs that have held sway for two hundred years.
By that we mean principles such as inter-party costs being awarded as an
indemnity1, as opposed to being awarded on the basis of punishment or bonus (as
now occurs). Such principles were important and ensured a proportionate cost
liability was placed upon a losing party. We would go so far as to say that the
present costs regime can operate as an oppressive burden upon a party brought
into litigation, thereby preventing access to justice.
Claimant lawyers will no doubt refer to the principle of "full compensation".
However, such a concept is relatively new and does not justify the retention of a
costs regime at disproportionate cost to society at large. Indeed Sir Rupert's
proposals will increase compensation to claimants in personal injury claims.
Further, the removal of ATE insurance premiums and imposition of qualified one
way costs shifting will bring about a more transparent and accessible funding
system to would-be claimants.
Overall we believe that there should be a return to the position that existed for
over two hundred years prior to April 2000. The thrust of Sir Rupert Jackson's
proposals seeks to do just that.
1
Harold v Smith (1860) 5 H&N 381 Per Baron Bramwell at 385
Page 2 of 39
EVIDENCE
Before we respond in detail to each individual question, we have provided some
general comments to assist in this consultation. We have collated both claim data
and anecdotal evidence to support our submissions.
In his final report, Sir Rupert concluded that "the proper course is to abolish
recoverability [of success fees from defendants] and to revert to style 1 CFAs, as
they existed before April 2000. Those arrangements were satisfactory and opened
up access to justice... during 1996 APIL confirmed that those arrangements
provided access to justice for personal injury claimants and that those
arrangements were satisfactory..."
Sir Rupert went on to ask "whether any measures and, if so what measures, should
be taken to assist claimants who will have to pay success fees?"
Sir Rupert recommended three measures. Our response considers those suggested
measures and answers those questions posed by the Government in its Consultation
Paper.
We attach at Appendix 1 examples of the data captured by a large composite
insurer who mainly deals with volume EL/PL personal injury claims. This data
tracks via outside specialist cost consultants the inter-relationship between
damages paid, costs claimed, percentage success fee, ATE insurance premium and
overall total claims cost to that insurer.
We attach at Appendix 2 two graphs showing, in cases up to a value of £5,000, the
inter-relationship between damages and costs pre and post-litigation. This shows
that claimants' costs account for 66% of the total claim costs paid pre-litigation and
are in excess of 75% when the claim enters litigation.
In addition, the insurer that captured this data recently reviewed nearly 300
closed/settled personal injury claims when a payment had been made to a
claimant. In the vast majority of cases liability was accepted and contributory
negligence was raised in only 15% of cases (successful in 10% of cases). Thus the
risk of losing to the claimants’ solicitors was minimal and the claimed success fee
resulted in excessive profits for claimant lawyers.
In addition, we have noticed with concern the increase in staged ATE premiums,
which in our view are often used as a tactic to make defendants and their insurers
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consider early commercial settlement in unmeritorious claims. The majority of
EL/PL personal injury claims we deal with are funded by CFAs with success fees
backed by ATE insurance premiums. Use of BTE insurance is rare.
We set out below two typical staged ATE insurance premiums in low value cases:
Example one
Personal injury claim which eventually settled for £2,000 for PSLA (general
damages). In October 2010 Claimant's solicitors put the ATE insurance premium at
£2,094.75. In November 2010, notification was received that Stage 3 of the
premium had been calculated at £24,937.50, which was in addition to Stage 1 and
2 of the premium and without the addition of base costs and success fee.
Example two
Personal injury claim which eventually settled for £2,500 for PSLA (general
damages). ATE insurance limit of indemnity of £25,000 and staged premiums of
pre-litigation £757.50, post-issue £1,200 and trial £2,835. Settled at Stage 2, so
ATE insurance premium alone was 50% of value of claim, without the addition of
base costs and success fee.
Thus we agree that implementing Sir Rupert's preliminary recommendations will
remove the potential unfairness caused by ATE premiums.
In the past ten years or so, claimants have not had to bear any legal costs in
relation to bringing a claim and, as recognised by the Government (paragraph 31 of
the Consultation Paper), re-distributing some of these costs so that the burden is
shared is fair and equitable. This is particularly pertinent when one considers the
impact upon society, the public sector, voluntary organisations and UK public
limited companies during what is a period of prolonged recession.
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REFERRAL FEES
We note from section 3.1 of the Consultation Paper that referral fees are not
within the scope of the present consultation. We consider this is unfortunate and
agree with Sir Rupert that referral fees are a significant and contributing factor to
disproportionate costs in our present system. We strongly believe that referral
fees are a ‘hidden cost’ of personal injury litigation and are not subject to normal
market forces. Referral fees bring about no particular social benefit and create an
additional cost burden which the present system cannot sustain.
As part of Sir Rupert’s interlocking package he considered that referral fees should
to be banned or capped. We agree with that proposal, which would free up funds
that could be used elsewhere (including for disbursements).
Notwithstanding our above comments, we accept that the present LSB consultation
is a sound basis upon which to determine the referral fee issue as that consultation
is focused upon the consumer. However, the consumer does not pay the referral
fee and is not subject to any identifiable detriment because of the preference of a
referral fee.
Consequently, the point is lost that referral fees do not deliver
access to justice yet they are a significant cost factor within our Civil Litigation
system. For this reason we believe there should be a Government led consultation
on this aspect taking in wider considerations than simply the consumer
perspective.
Page 5 of 39
FURTHER INFORMATION
In drafting this submission Kennedys has taken soundings from a wide interest
group, comprising of voluntary organisations, composite insurers, corporations
(with a large self-insured element) and public bodies.
We have also met with
Ministry of Justice officials as well as Lord Young during his Whitehall review of
“Compensation Culture” and continue to remain eager to take part in this
consultation process.
Any enquiries about the response or requests for further information should be
addressed, in the first instance, to:
Tracy Head
Partner for Kennedys LLP
Victoria Court
17-21 Ashford Road
Maidstone
Kent ME14 5FA
T: 01622 625 648
E: [email protected]
Page 6 of 39
Section 2.1 - Conditional fee agreements and success
fees
The proposal: that CFA success fees should no longer be recoverable
from the losing party
Question 1: Do you agree that CFA success fees should no longer be recoverable
from the losing party in any case?
Yes. We agree with Sir Rupert that recovery of success fees in the present regime,
whilst providing access to justice to the claimant, arrives at a disproportionate cost
and in some cases is a denial of justice to the defendant. This is particularly so in
the personal injury area.
We agree with and support Sir Rupert’s observations about the CFA/success fee
regime (as contained in his Final Report under Part 2 Section 10).
Lack of control
The claimant has no interest in the level of costs and that lack of “control” leads
to disproportionate costs.
The CFA model proposed by Sir Rupert where the
success fee would be charged against damages would create market forces which
would serve to control costs as a claimant will be incentivised to choose the
solicitor offering the most competitive deal.
We have no doubt that in a true
market situation; for certain categories of case with low risk, solicitors will forego
charging success fees.
Excessive costs burden
Sir Rupert found that success fees in particular were a cause of disproportionate
cost. If that is accepted, then it is correct that success fees should be removed
from all categories of personal injury claims. Currently, whilst success fees are
fixed for RTA/EL claims, there are problems with the present system as the
claimant can still recover 100% if a matter proceeds to trial (whether or not a
defendant has made a valid Part 36 offer). Furthermore, the reality of a 100%
success fee being applied to costs leads to a denial of justice as the sensible thing
Page 7 of 39
for the defendant to do in such circumstances is to compromise, irrespective of
how meritorious his defence may be.
A system which operates in this way is
neither sustainable nor fair.
Cherry-picking
Where claimant solicitors potentially seek to take on only “winners”, fixed success
fees can result in excessive profits for those lawyers who “cherry-pick” their
claims. The fixed success fees are based on calculations as to claims won and lost.
This is especially so in the RTA area where most claims succeed; a claimant lawyer
can “substantially increase earnings” by only selecting claims which will win.
For those reasons made out by Sir Rupert in his Final Report at paragraphs 109-112,
we believe his conclusion that the “proper course” is to abolish the recoverability
of success fees is the only option.
Question 2: If your answer to Question 1 is no, do you consider that success
fees should remain recoverable from the losing party in those categories of case
(road traffic accident and employer's liability) where the recoverable success
fee has been fixed?
Not applicable (see response to Question1).
Question 3: Do you consider that success fees should remain recoverable from
the losing party in cases where damages are not sought e.g. judicial review,
housing disrepair (where the primary remedy is specific performance rather
than damages)?
In our experience, most judicial review cases are dismissed at the permission stage
and if they have merit and proceed, are often resolved before substantial costs are
incurred. Assuming the correct pre-action protocol has been complied with, it is
usual for the court to make “no order as to costs”.
A further important consideration for cases which reach beyond the permission
stage is the proposal for qualified one way costs shifting (QOCS), which will
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improve access to justice for the applicants by removing (or reducing) the risk of
adverse costs. We arrive at this view because hitherto ATE has not developed in
this area and the inability to source cover as against adverse costs has been a
barrier to access to justice.
If QOCS is to be implemented it is necessary for recoverable success fees to be
abolished as otherwise there will be unfair pressure on the defendant to concede
what they may regard as unmerited judicial review claims. This would be due to
the combined effect of success fees which will have to be paid if applications are
fought and lost and the prospect of no recovery of costs in cases which otherwise
merit defending. There would be an undue pressure to settle judicial review cases
and that would impact upon access to justice.
For those reasons, we believe a fair balance will be achieved only if recovery of
success fees is removed and QOCS implemented.
In respect of housing disrepair claims we believe that costs can be disproportionate
where CFAs and ATE insurance are concerned; for example, see the facts in Bowen
v Bridgend [2004] EWHC 9010 (Costs) where the average damages were £1,631
against average total costs claimed being £8,012. For that reason we believe that
recovery of success fees in housing disrepair should be abolished. Many housing
disrepair claims fall within the small claims track and can be resolved without a
lawyer and legal aid will remain available.
Question 4: Do you consider that if success fees remain recoverable from the
losing party in cases where damages are not sought, a maximum recoverable
success fee of 25% (with any success fee above 25% being paid by the client)
would provide a workable model?
In principle we believe success fees should be abolished altogether but if success
fees remain recoverable from the losing party in cases where damages are not
sought, we agree the recoverable success fee should stand at a maximum of 25%
but with staged increases. For the natural stages of the judicial review process
(pre-action stage, permission stage and full hearing stage), staged CFA success fees
should be considered, again with a maximum of 25% success fee to be permitted
for the final stage. Equally, in respect of housing disrepair claims where there is
no claim for general damages there should be low success fees for claims where
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there is an admission during the protocol period rising to 25% for claims that
proceed to litigation.
Question 5: Do you consider that success fees should remain recoverable from
the losing party in certain categories of case where damages are sought e.g.
complex clinical negligence cases?
No, for the same reasons as provided under Question 1. Further, costs in complex
clinical negligence cases are already very high because of the nature of that
litigation and the high charging rates sought by claimant lawyers. No evidence was
supplied to Sir Rupert that clinical negligence litigation could not be conducted if
success fees were removed, nor were there submissions from claimant lawyers to
the effect they would no longer seek to specialise in this area. We are strongly of
the view that high charging rates, which are sought and regularly awarded to
claimant lawyers specialising in this area are a cause for disproportionate costs and
the additional layer of a success fee which is applied on top of those rates causes
an imbalance to access to justice.
We have significant experience in handling claims of utmost severity (we act for
the NHSLA and large composite motor and EL/PL insurers). When setting reserves
for our clients we would expect to face (from the claimant) a base cost of £300 to
£400 per hour, which may be subject to (a) a request to the costs judge to disapply
the guideline court rates as this is said to be a specialist area and (b) a significant
success fee, even in the face of an early admission. Our charges to our clients will
often be 25% of those incurred by the claimant’s lawyer.
In support, we refer to an article written in The Times in March 20092 where £750
per hour was cited.
2
http://www.timesonline.co.uk/tol/news/uk/health/article5950420.ece
Page 10 of 39
Question 6: If success fees remain recoverable from the losing party in certain
categories of case where damages are sought, i) what should the maximum
recoverable success fee be and (ii) Should it be different in different categories
of case?
Subject to our response at Question 4 above, we believe recoverable success fees
should be abolished for all categories of case where damages are the main remedy.
Question 7: Do you agree that the maximum success fee that lawyers can
charge a claimant should remain at 100%?
Yes.
Question 8: Do you agree that there should be a cap on the amount of damages
which may be charged as a success fee in personal injury claims, excluding any
damages relating to future care or future losses?
We assume this relates to a concern that in complex personal injury cases it may
be uneconomic to run these under a capped success fee of 25% of damages
(excluding any damages referable to future care or future losses) due to the
complexity of the investigation.
We do not accept this contention in complex/high value cases, clinical negligence,
and disease claims or indeed in any category of personal injury claims.
As a
starting point one must look at the Guideline Hourly Rate to assess the level of
charges claimant lawyers can seek. These range from charges for solicitors of eight
years experience (likely in complex or other specialist cases) in London of £409 to
national rates of £217 to £201 per hour in 2010. The Supreme Court Costs Office
(SCCO) does adhere to the Guideline rates in complex cases and awards of £400 per
hour plus a success fee are not unusual.
No one has suggested or provided
evidence that the removal of success fees would make this work unattractive or
uneconomic.
Page 11 of 39
By contrast the insurance industry and public bodies use market forces to keep a
tight rein on the costs paid to their lawyers.
One large composite insurer has
assessed that it currently pays between £100 and £170 per hour to solicitors
appointed to handle personal injury claims.
There is of course no success fee
required to be paid on top of this and strict adherence to (often onerous) service
level standards ensures focus and pro-activity with costs being kept to a minimum.
It is accepted that defendant solicitors manage to enjoy a reasonable return from
these level of costs, which also require “complexity of investigation”. Thus the
argument that it is “uneconomic” to run complex personal injury cases for claimant
firms is incorrect.
One would hope that in high value cases claimant solicitors would, in the interests
of fairness and justice, limit the amount of success fee they seek from their client
– 25% seems a prudent cap.
Furthermore, the introduction of success fees charged against damages will also
encourage market forces to operate, so that the most successful claimant lawyers
will be able offer the least reduction on damages, or even offer not to deduct
damages at all. Sir Rupert’s proposals would also encourage claimants to have an
interest in the costs which will create a further control and prevention on
disproportionate costs being incurred.
Question 9: If your answer to Q 8 is yes, should the cap be (i) 25% or (ii) some
other figure (please state with reasons)?
We agree that there ought to be a cap.
25% of the PSLA award is fair and
reasonable.
Page 12 of 39
Question 10: If your answer to Q 8 is yes then should such a cap be binding in
all personal injury cases or should there be exceptions, and if so what and how
should they operate?
We believe there should be a financial limit and it should be binding in all cases as
to how much a claimant lawyer can charge (retain) as a success fee derived from
damages. Otherwise there is the risk of exploitation. 25% of one million pounds is
a considerable amount of money.
Page 13 of 39
Section 2.2 - After the event insurance premiums
The proposal: that the ATE insurance premium should no longer be
recoverable from the losing party.
Question 11: Do you agree that ATE insurance premiums should no longer be
recoverable from the losing party across all categories of civil litigation?
Yes, but alongside the implementation of the inter-locking qualified one way costs
shifting (QOCS). We agree with Sir Rupert’s conclusions that ATE insurance is a
very expensive means of delivering the social policy objective of protecting
impecunious claimants from adverse costs. Sir Rupert went as far as to define the
present regime of recoverable ATE insurance premiums as “indefensible”.
We
agree with that observation.
To illustrate why ATE insurance in the personal injury arena arrives at
disproportionate cost we attach data obtained by one of our clients on the cost of
ATE insurance premiums when balanced with overall costs paid. This data shows
that modest injury claims valued between £1,000 and £15,000 result in an average
cost payment of £6,930.92, of which an average of 12% represents the cost of ATE
insurance premiums. In the vast majority of cases liability is admitted or likely to
be found against the defendant. Therefore, the “risk” of a claimant having to turn
to his ATE insurance in order to avoid adverse costs is minimal and yet the cost (to
the defendant) is significant.
The present system also gives rise to absurd consequences particularly with regard
to defamation actions where litigants who have means can obtain ATE insurance at
significant cost to the other party. QOCS as formulated by Sir Rupert would ensure
access to justice by neatly doing away with the necessity of ATE insurance, which
we believe should be reserved to those unable to fund litigation. Moreover QOCS
would remove the perversity we have just identified, where conspicuously wealthy
litigants can obtain ATE insurance premiums at no cost to themselves by being able
to pass the entire cost on to the losing party.
Page 14 of 39
Question 12: If your answer to Question 11 is no, please state in which
categories of case ATE insurance premiums should remain recoverable and why.
N/A
Question 13: If your answer to Q 11 is no, should recoverability of ATE
insurance premiums be limited to circumstances where the successful party can
show that no other form of funding is available?
N/A
Question 14: Do you consider that ATE insurance premiums relating to
disbursements only should remain recoverable in any categories of civil
litigation? If so, which?
No. The reason for this is because the problem with “recovery” in our present
system (which would apply to this proposal) is that in respect of ATE insurance, the
purchaser does not pay for the premium. The cost of ATE insurance premiums has
spiralled as there are no conventional market forces in operation and the courts
have made decisions that make it near impossible for defendants to challenge the
level of premiums.
Indeed, in Sir Rupert’s final report, one ATE insurer stated that none of its
premiums had ever been reduced by the courts.
Given that ATE insurance is
already regarded as an expensive form of “one-way” cost-shifting, the way in
which the present regime operates is not desirable.
We also agree with Sir Rupert with regard to the “many paying for the few”, which
is a poor principle upon which to rest considerations about costs. In a reformed
costs regime where there is no recovery of ATE insurance premiums and where
QOCS is implemented, potential defendants will make a proportionate contribution
by bearing their own costs. Why should those who are never brought into litigation
have to pay for the few?
We believe if ATE insurance recovery remained for disbursements there would be
no change from the present regime. There would continue to be no control on the
cost of ATE insurance premiums and ATE insurance premiums would continue to be
very expensive for the access to justice benefit they deliver.
Page 15 of 39
We further believe QOCS combined with contingent CFAs is a better way of
delivering the social policy of allowing access to justice to those who are
impecunious, whilst rebalancing one aspect of the present system, which does not
lead to access to justice at proportionate cost.
Question 15: If your answer to Question 14 is yes, should recoverability of ATE
insurance premiums be limited to non-legal representation costs such as expert
reports?
No comment – see our reply to Question 14.
Question 16: If your answer to Question 14 or Question 15 is yes, should
recoverability of ATE insurance premiums relating to disbursements be limited
to circumstances where the successful party can show that no other form of
funding is available?
No comment – see our reply to Question 14.
Question 17: How could disbursements be funded if the recoverability of ATE
insurance premiums is abolished?
With reference to Question 14 above, disbursements are not ‘funded’ by ATE
insurance directly. The up-front financing of disbursements is met by claimant
solicitors and in some cases by separate finance agreements.
Rather,
disbursements are “insured” by ATE insurance but in most cases unless that ATE
insurance is combined with a finance agreement a claimant solicitor will “front”
the disbursements. We believe this to be the correct position and we note that Sir
Rupert adopts the same view in his Final Report (see 5.1 at page191).
In terms of the issue raised by this question, it is essential to consider Sir Rupert’s
proposals holistically and in the context of the ATE insurance proposal and the
proposal for QOCS. The ATE insurance proposal together with QOCS provides for
access to justice at proportionate cost and is an altogether more sensible approach
to the “many paying for the few” principle that underpins our present system.
Furthermore, Sir Rupert’s proposals will encourage the greater use of BTE
Page 16 of 39
insurance (which is said to apply to six out of ten people3) and it will be open to
claimants or their lawyers to purchase ATE insurance cover at a cost which is
regulated by market forces.
If this premise is accepted, there will be no significant change to the way that
disbursements are “funded”, save that in claims which are unsuccessful, either the
claimant or his solicitor will have to bear the loss. We do not see this as being a
bar to the principle aim of “access to justice at proportionate cost” because the
claimant will have received the benefit of QOCS and will not, therefore, face
adverse costs. In addition, in successful claims, the claimant’s solicitor should be
able to finance the loss through the use of funds recovered by virtue of contingent
CFAs and DBAs.
In short, there are better and cheaper alternatives to fund disbursements
(including QOCS). It is evident that claimant solicitors can (and have) provided a
costs indemnity to their client in the event of not being able to find insurance (see
for example Sibthorpe and Morris v Southwark LBC [2011] EWCA Civ 25). Claimant
solicitors can be third party funders and pay for disbursements (those of their
client and the defendant) for a fee payable on winning. Such a system of lawyers
acting as funders has existed and operated in Scotland for some time. In addition,
October 2011 will see the introduction of alternative business structures (“ABS” so called “Tesco law'”, which will introduce new income streams to solicitors that
are currently unavailable.
All these measures/options should assist claimant
solicitors to fund disbursements.
We also observe that high referral fees continue to exist. If claimant solicitors are
prepared to pay a referrer a sum of between £600 to £900 before they know
whether the case has merit, will succeed and provide a return, then they can most
certainly fund disbursements.
We note the potential concern about funding expensive medical reports during
preliminary investigations in certain cases (including clinical negligence claims) and
in claims which are subsequently abandoned. We make the following observations
based on our practice. Normally, only one report is needed to form a preliminary
3
The MoJ paper “The Market for 'BTE' Legal Expenses Insurance” (July 2007) revealed that almost six out of ten
people (59 per cent) have before-the-event (BTE) legal expenses insurance
http://www.justice.gov.uk/publications/docs/market-bte-legal-expenses-insurance.pdf
Page 17 of 39
view of breach of duty for the purpose of the letter of claim (quantum reports are
not required at this stage). We also wish to highlight the practice of one of our
insurer clients which operates a scheme whereby an approved expert provides a
preliminary opinion on the viability of the claim at a low/pre-agreed fee i.e. as
part of an initial ‘screening’ process.
If defendants are able to develop innovative cost-efficient arrangements, why
cannot claimant firms?
Finally, we observe an apparent lack of evidence to suggest a high financial
exposure to disbursements in abandoned cases.
Moreover, we reiterate the
principle that the concept of 100% recoverability has only existed since 2000.
Question 18: Do you agree that, if recoverability of ATE insurance premiums is
abolished, the recoverability of the self-insurance element by membership
organisations provided for under section 30 of the Access to Justice Act 1999
should similarly be abolished?
We believe the answer to this question must be “yes” because those claimants who
are members of organisations providing section 30 “self-insurance” will take the
benefit of QOCS.
Furthermore, the additional amount which a membership
organisation recovers for insuring a member is calculated by reference to the likely
cost of an insurance premium (ATE) for the risk of incurring a liability to pay costs
to other parties. If QOCS were to be implemented there would be no requirement
for membership organisations to indemnify members against adverse costs and,
therefore, no sums should be paid to such organisations. To do otherwise would
result in an “unfair advantage”; something which the Government suggests will be
the case in its Paper and with which we agree.
Page 18 of 39
Section 2.3 - 10% Increase in General Damages
The proposal: that there should be an increase in general damages of 10%
Question 19 - Do you agree that, in principle, successful Claimants should
secure an increase in general damages for civil wrongs of 10%?
In principle, we consider there are a number of reasons why there should not be a
10% increase in general damages (being for pain, suffering and loss of amenity
‘PSLA’). These include the following:
•
The judiciary sets and adjusts levels of general damages, not parliament;
•
Civil damages compensate claimants for loss or injury only, not
to meet costs. This increase could create a precedent for increases in other
circumstances; and
•
The increase is to assist CFA claimants to meet the success fee, but in fact
all claimants would benefit meaning non-CFA claimants receive a windfall.
However, as part of our general support for reform and, in particular, our support
to abolish the recoverability of success fees in CFAs and ATE premiums, we support
Sir Rupert’s recommendation, provided this is implemented by means of a
guideline judgment as suggested by Sir Rupert (see 4.2 of Sir Rupert’s Response
dated 14 January 2011).
We share Sir Rupert’s view on the Government’s possible refinement to retain the
success fee equal to 10% of PSLA (at paragraphs 4.3 – 4.5 of his Response). We add
that there would be difficulty in implementing this alternative proposal and it
would affect the practice of making global offers.
Having to quantify the
breakdown could lead to trial/satellite litigation. We urge the MoJ not to interfere
with the operation in the market place of making offers on a global basis, which
currently allows compromise.
Claimants serve detailed schedules of special
damages and future losses and defendants serve counter schedules. Moreover, in
the larger/higher-value cases, these schedules are supported by numerous
quantum expert reports. Both parties, therefore, know down to the last penny
Page 19 of 39
what each party considers the value of the case is under each of the various “heads
of damage”. However, both parties can then make Part 36 global offers, which cut
through everything to get to the “bottom line”.
This commercial approach is
accepted practice for all those experienced in litigation.
The Government asks whether an increase of 10% in general damages (PSLA) is
sufficient for claimants to bring claims in certain circumstances where there are
high costs and risks relative to the level of general damages (as opposed to
damages for future loss and expenses). We have seen the response prepared by
Stewarts Law supporting the proposition that a 10% increase is insufficient
(Stewarts Law LLP 22 March 2010). However, the 10% increase is not the only
measure recommended to assist the claimant – it is a part of the package of
reform. By increasing general damages (PSLA) by more than 10%, we believe that
the current position will be maintained, namely with the claimant having no
interest in the level of costs being incurred in his name.
We further note that some claimant groups assert there is a principle of full
compensation and this should always take priority over the cost rules. We agree
with the Government at paragraphs 100-108 of the Consultation Paper that there
has never been such a principle. In fact, it has only been since April 2000 (and only
then for CFA claimants) that the pursuit and receipt of damages has been a
financially risk-free possibility (which has coincided with an unsustainable increase
in costs).
Question 20 - Do you consider that any increase in general damages should be
limited to CFA Claimants and Legal Aid Claimants subject to a SLAS?
No. We consider it is preferable for the recommended 10% increase in general
damages (PSLA) to be “across the board”, not least for ease of implementation.
Otherwise:
•
It would incentivise claimants to enter CFAs to recover a net increase after
paying the success fee;
•
The level of damages the claimant could recover would be dependent on
method of funding; and
Page 20 of 39
•
It would be necessary for reported cases (which all parties consider when
assessing the appropriate level of general damages in a particular case) to
distinguish between those damages for PSLA which have been enhanced by 10%
for funding reasons and those which have not. Otherwise, damages for PSLA
would increase unnecessarily.
Data of any working group would also be
affected (including that set up following Sir Rupert’s recommendation to
establish a uniform calibration for all software systems used in the assessment
of damages for PSLA up to £10,000, Final Report page 215).
Page 21 of 39
Section 2.4 – Part 36 Offers
The proposal: that Part 36 of the Civil Procedure Rules (offers to settle) should
be reformed.
Question 21 - Do you agree with the proposal to introduce an additional
payment, equivalent to a 10% increase in damages, where a claimant obtains
judgment at least as advantageous as his own Part 36 Offer?
No.
However, as part of our general support for reform and, in particular, our support
to abolish the recoverability of success fees in CFAs and ATE premiums, we support
this proposal (subject to our responses to questions 24 and 25 below).
Question 22 - Do you agree that this proposal should apply to all Claimant Part
36 Offers (including cases, for example, where no financial remedy is claimed
or where the offer relates to liability only)? Please give reasons and indicate
the types of claim to which the proposal should not apply.
No, it should not include cases where no financial remedy is claimed.
We consider there are a number of problems if this proposal is applied to all types
of case as discussed in Sir Rupert’s Final Report and the Government’s Consultation
Paper. Implementing this proposal to include cases where no financial remedy is
claimed (e.g. so called “liability only” cases) will create an imbalance in the
existing rules in the claimant’s favour. There will be satellite litigation.
Sir Rupert recognises there is an issue with cases where the principle relief (or
even the sole relief) sought is non-monetary (e.g. injunction or a declaration). Sir
Rupert considers the court should ascribe a value to any non-monetary relief which
is awarded. It is suggested that this is carried out summarily when the judge is
dealing with costs at the end of the case (Final Report, page 425). Sir Rupert
recognises, however, that this may cause satellite litigation but considers appeals
“should be firmly discouraged”. In our opinion this is too complex, too uncertain
and will without doubt lead to satellite litigation. Furthermore, a party bringing
proceedings for an injunction or a declaration is interested in obtaining that relief
only. The proposal should not apply to such claims.
Page 22 of 39
An additional 10% uplift will be equally difficult to apply in “liability only cases”
where no quantum investigations have been undertaken. We stress here to the MoJ
that there is no such thing as a “liability only case”. A claim for compensation (i.e.
damages) can be “split” and liability can be tried first as a preliminary issue but a
second trial or an “assessment of damages” is still required (in the absence of
agreement).
It is the latter part or the assessment of damages part that the
proposal should apply to; not to the “liability only” part and not to both.
Furthermore, current court rules permit liability only Part 36 offers (Part 36.2(5))
and under Part 36.14(1b) the claimant only has to (since April 2007) obtain a
judgment against the defendant at least as advantageous to the claimant as the
proposals contained in the claimant’s Part 36 offer.
In Huck v Robson [2002]
EWCA Civ 398 the Court of Appeal considered an offer made by the Claimant to
accept 95% was a valid offer and entitled him to indemnity costs.
If the
Government’s proposal is applied to liability only cases, claimants will make 95% or
even 100% Part 36 offers.
Clearly, these offers are not serious attempts at
compromising liability but are a way for claimants to obtain an unjust enrichment.
Courts have discretion under existing rules not to award any enhancement.
However, whether discretion should be granted is likely to lead to satellite
litigation.
Question 23 - Do you agree that the proposal should apply to incentivise early
offers? Please explain how this should operate.
We agree that any proposal should incentivise parties to make early offers.
However, we have concerns in the highest value monetary claims that an additional
payment equivalent to a 10% increase in damages will not incentivise early offers
and would create a perverse incentive to proceed to trial merely to obtain the
uplift. There is a risk of encouraging late amendments to claims and/or schedules
of special damages and future loss and encouraging late offers to take benefit of
the 10% uplift. It would also lead to parties negotiating just over the uplift.
Page 23 of 39
Question 24 - Do you consider that the increase should be less than 10% where
the amount of the award exceeds a certain level? If so, please explain how you
think this should operate.
We consider the increase should be 10% in awards up to and including £500,000.
Question 25 - Do you consider that there should be a staged reduction in the
percentage uplift as damages increase?
No – see Question 24.
Question 26 - Do you agree that the effect of Carver should be reversed?
Yes.
Carver laid down that in deciding whether a judgment was more advantageous to a
litigant than a Part 36 offer, the court had to take account of all aspects of the
case, including emotional stress and financial factors. However, the weight to be
given to those factors remained a matter for the judge, creating uncertainty as to
what would constitute “more advantageous” in terms of an offer. We agree with
Sir Rupert that reversal of Carver would relieve unreasonable pressure on both the
claimant and the defendant to better consider the risks of not accepting a Part 36
offer.
Question 27 - Do you agree that there is merit in the alternative scheme based
on a margin for negotiation as proposed by FOILl? How do you think such a
scheme should operate?
Yes.
Page 24 of 39
Section 2.5 – Qualified one way costs shifting (QOCS)
The proposal: that there should be a regime of qualified one way costs
shifting in certain cases.
Our position is that the measures must be seen, as envisaged by Sir Rupert, as a
package of measures. Our support for this proposal is dependent upon the MoJ
accepting Sir Rupert’s recommendations as a whole and not as a menu of options
where some and not all are implemented. To do so would lead to manifestly unfair
situations where, for example, claimants’ damages are enhanced without any
additional acceptance of risk on their part. Acceptance in full is also inherent in
the proposals themselves, as otherwise some are contradictory in nature. For
example, without the introduction of QOCS there would be no incentive to remove
ATE insurance.
Question 28: Do you agree with the approach set out in the proposed rule for
QOCS (paragraph 135 – 137)? If not, please give reasons.
We endorse the proposal for the introduction of QOCS on the basis that ATE
premiums are no longer recoverable from the losing party.
As highlighted at paragraph 132 of the Consultation Paper, Sir Rupert suggests that
the test for QOCS should operate restrictively, so that claimants are only
exceptionally required to meet defendants’ costs, thereby ensuring fairness by
preventing defendants from exercising “financial muscle” to force claimants to
settle (by increasing a claimant’s expenditure on defence costs).
Whilst we
understand the principle of fairness Sir Rupert is seeking to ensure by developing
“qualified” cost shifting, we do question the premise as to defendants exercising
financial muscle. Statistics show that defendants’ costs are on average less than
half those of claimants’.
We have some concerns about the practicality of QOCS and in which circumstances
this would apply. For example, paragraph 137 of the Consultation Paper refers to
the equal financial footing of the parties. Where the claimant is represented with
the benefit of “legal expense” BTE insurance (typically in motor cases through the
claimant’s policy of car insurance or through home insurance), or where he
Page 25 of 39
receives union backing, the parties can be said to be on an equal footing. In such
circumstances we do not believe QOCS should apply. Where Sir Rupert refers to
“the financial resources of all the parties” we believe that test should encompass
the extent to which the claimant is indemnified by pre-existing legal expense
insurance or through union funding.
Question 29: Do you agree that QOCS would significantly reduce the claimant’s
need for ATE insurance?
Yes. However, where a claimant has means he may purchase ATE insurance to
provide further “cover” over and above QOCS, particularly where such a claimant
does not fall within the “qualifications” as to financial means. In such an instance
the ATE insurance premium would not be recoverable but be purchased from the
market.
We believe existing ATE insurance providers will seek to meet this need
where the cost of premiums will be controlled by market forces.
Question 30:
Do you agree that QOCS should be extended beyond personal
injury? Please list the categories of case to which it should apply, with reasons.
QOCS should be limited to personal injury claims to ensure the same access to
justice exigencies do not necessarily apply to other categories of case.
By
exigency (in this context) we mean as follows: Sir Rupert sought to develop QOCS
to “level the playing field” where there was an asymmetric relationship between
the parties in terms of their ability to fund litigation. Where parties are already of
equal bargaining power, the application of QOCS may create unfair and noncommercial situations.
If there was a desire to extend QOCS beyond personal injury claims then it should
be limited to the following circumstances:
1.
Contract: Subject only to public policy considerations (e.g. where the
parties are not of equal bargaining power), a pre-litigation agreement
whereby the parties determine how the costs of litigation would be
distributed should be ratified.
2.
Public interest litigation:
Proceedings in which a member of the
public seeks to enforce an interest or right which is of wider application
Page 26 of 39
and benefit e.g. environmental, consumer and employment practices.
The current suggestion that QOCS might be extended to judicial review
and defamation could be described as “public interest litigation” if a
remedy was being sought which would benefit (directly or indirectly)
the public at large and not just the particular claimant.
While there will always be exceptions to the rule, most personal injury claims can
be litigated at reasonable expense when compared to other types of litigation,
albeit still disproportionate to the value of the claim. The defendant’s response to
litigation is governed not just by the merits of the claim but by the expense to
which that defendant will be put to defend it. It is submitted that if QOCS were to
extend to, say, professional indemnity cases (which are maintained for the
claimant’s personal benefit) then the enhanced costs of defending such a claim
would force defendants to compromise unmeritorious claims thereby encouraging
the flow of such cases.
Question 31:
What are the underlying principles which should determine
whether QOCS should apply to a particular type of case?
No comment as this question falls outside our core area of expertise.
Question 32: Do you consider that QOCS should apply to (i) claimants on CFAs
only or (ii) all claimants however funded?
QOCS should apply to all claimants, subject to the test of financial resources
propounded by Sir Rupert at p189 of his Final Report.
This would include
considerations of “resources” in the wider sense to include whether the claimant
had BTE insurance or union funding.
Page 27 of 39
Question 33:
Do you agree that QOCS should cover only claimants who are
individuals? If not, to which other types of claimant should QOCS apply? Please
explain your reasons.
We agree with the Government at paragraph 166 of the consultation paper that
QOCS should not be extended beyond individual claimants.
We also refer to our
response at Question 30 and the asymmetric relationship considerations which
underpin QOCS.
Question 34: Do you agree that, if QOCS is adopted, there should be more
certainty as to the financial circumstance of the parties in which QOCS should
not apply?
Yes.
Where a claimant abandons his claim by filing notice of discontinuance, the onus
ought to be upon the claimant to dispel the implication that the claim was
frivolous. He should be required to file details of his financial circumstances to
show cause that a cost order should not be made against him by.
This would
require a suitable amendment to CPR 38.
Question 35: If you agree with Q.34, do you agree with the proposals for a
fixed amount of recoverable costs (paragraph 143 – 146)? How else should this
be done?
Yes, on the basis that the question is directed only to adverse costs where the
claimant is under QOCS but has behaved unreasonably and consequently has to pay
a fixed amount (unless he would have qualified for legal aid (i.e. impecunious) or is
“conspicuously” wealthy and not, therefore, subject to a fixed amount). Again the
default position should be that the claimant should be obliged to pay costs unless
he can show cause that such an order should not be made by disclosing his financial
means.
Page 28 of 39
Section 2.7 – Alternative recommendations on
recoverability
Question 36 – Do you agree that, if the primary recommendations on the
abolition of recoverability etc are not implemented, (i) Alternative Package 1 or
(ii) Alternative Package 2 should be implemented?
No.
We believe the primary recommendations should be introduced as a package as Sir
Rupert intended. The alternative packages do not address the difficulties caused
by recoverability.
For that reason we do not see that either of the alterative
packages is an appropriate remedy for the problems that beset our current system.
Question 37 – To what categories of case should fixed recoverable success fees
be extended? Please explain your reasons.
Please see our response at section 2.1 – success fees should not be recoverable.
Question 38 – Do you agree that, if recoverability of ATE insurance remains, the
Alternative Packages of measures proposed by Sir Rupert should also apply to
the recovery of the self-insurance element by membership organisations?
No.
We agree with Sir Rupert’s Response to the Consultation Paper CP 13/10 where at
4.13 he rightly states that unions prior to April 2000 funded members’ claims and
will continue to do so if recovery of a “self-insurance” element is abolished. On
that basis even under the Alternative Package we believe there should be no
recovery of the self-insurance element.
Question 39 – Are there any elements of the alternative packages that you
consider should not be implemented? If so, which and why?
No.
Page 29 of 39
Section 2.8 – Proportionality
The proposal: that there should be a new test of proportionality of costs
Question 40 – Do you agree that, if Sir Rupert’s primary recommendations for
CFAs are implemented; a new test of proportionality along the lines suggested
by Sir Rupert should be introduced?
Yes. It is clear that post-Lownds proportionality has failed to curb excessive costs.
Question 41 – If your answer to Q40 is no, please explain why not and what
alternatives would you propose to achieve the objective of ensuring that costs
are proportionate?
N/A
Question 42 – How would your answer to Q40 change if (i) Sir Rupert’s
alternative recommendations were introduced instead, or (ii) no change is
made to the present CFA regime? Please give reasons.
Reform of proportionality is needed whatever other reforms are introduced.
Question 43 – Do you agree that revisions to the Costs Practice Direction, along
the lines suggested (at paragraph 219), would be helpful?
We agree with the proposed revisions and suggest they be placed in provisions
under CPR 44 rather than in the practice direction. In our experience, rules placed
in a practice direction tend to carry less weight.
Page 30 of 39
We do not think it would be appropriate to limit the test to a small number of
cases: Disproportionate costs are commonplace. The courts’ discretion should not
be fettered excessively (which is why proportionality failed in the first place).
In terms of needless fetters we refer to the example of “cost-capping” and the
Court of Appeal case, Willis v Nicolson [2007] EWCA Civ 199, which recognised that
personal injury cases “are the most obvious candidates for costs capping”.
When the Civil Rules Committee finally drafted rules to deal with cost-capping,
they imported a threshold test of capping being reserved for only “exceptional
circumstances” cases (see PD 43-48 section 23). This immediately removed the
prospect of cost-capping for personal injury claims which are not regarded as
exceptional and furthermore no attempt was made to define “exceptional
circumstances”. This was inconsistent with the problem identified by the Court of
Appeal in Willis, which had led to consultation over cost-capping.
In addition to the matters suggested by Sir Rupert set out at paragraph 215 of his
final report, we would add that the court should consider the costs incurred by the
other party when determining whether the costs claimed are proportionate. In
addition, it is open to a court to make a percentage reduction to the costs claimed
following an assessment to ensure that the costs paid are proportionate. This last
method was approved by the Court of appeal in Booth v Britannia Hotels [2002]
EWCA Civ 579 but has since fallen out of use, particularly after the decision of the
Court of Appeal in Lahey v Pirelli Tyres [2007] EWCA Civ 91. We believe a court
should be able to make broad ranging reductions to reflect the overall outcome,
particularly where a claimant recovers a sum far less than was originally claimed.
This issue is not currently addressed either within the CPR or in the common law.
Page 31 of 39
Question 44 - What examples might be given of circumstances where it would
be inappropriate to challenge costs assessed as reasonable on the basis of the
proportionality principle?
Examples should not be given. The Rules should be open textured and the higher
courts will make sensible decisions to provide guidance. We refer once more to
the cost-capping rules (above), which, because of concerns over satellite litigation,
were neutered to the point that they have not been utilised to curb excessive
costs.
Page 32 of 39
Section 2.9 – Damages-Based Agreements (DBAs)
The proposal: that Damages-Based Agreements (‘contingency fees’)
should be allowed in litigation.
Question 45: Do you agree that lawyers should be permitted to enter into DBAs
with their clients in civil litigation?
Yes.
Question 46: Do you consider that DBAs should not be valid unless the claimant
has received independent advice?
No.
Currently claimants do not have to receive independent legal advice before
entering into a CFA. The duty on the lawyer is to investigate the variety of funding
measures and advise the claimant on the most appropriate course for the client.
Whilst a DBA gives the lawyer a direct financial incentive in the outcome of the
case, CFAs with success fees afforded a similar opportunity for the lawyer without
the reduction of the claimant’s damages.
However, provided the lawyer is required to justify the advice to the claimant to
enter into a DBA, we consider that should provide sufficient protection to the
claimant and is more workable and affordable than requiring all claimants to seek
independent legal advice. In cases where the claimant considers themselves to
have been ill advised they can seek redress through the Law Society. We do not
believe there should be interference between the conventional solicitor – client
relationship.
Page 33 of 39
Question 47: Do you consider that DBAs need specific regulation? If so, what
should such regulation cover?
Yes.
We recognise the possibility that regulation could lead to satellite litigation and
care is therefore required to achieve clarity of terms. The regulations could follow
and draw from the regulations for DBAs for employment litigation. Solicitors’ Code
of Conduct Rules should also ensure clarity around good practice.
Question 48: Do you agree that, if DBAs are allowed in litigation, costs recovery
for DBA cases should be on the conventional basis (that is the opponent’s costs
liability should not be by reference to the DBA)?
Yes.
We agree that the costs recovery should be on the conventional basis irrespective
of the existence of DBA subject to QOCS (see response to Q49).
Question 49: Do you consider that where QOCS is introduced for claims under
CFAs, it should apply to claims funded under DBAs?
Yes.
Question 50: Do you consider that the maximum fee lawyers can recover from
damages awarded under a DBA in personal injury cases should be limited to:
(i)
25% of damages excluding any damages referable to future care
or losses as proposed, or
(ii)
some other figure?
Please give your reasons for your answer.
We believe that the fee lawyers can recover should be limited to 25%.
Page 34 of 39
If there is any concern about protecting the claimant, there could be an ex parte
process for disputes between solicitor and client. Such a process would occur post
settlement under CPR Part 8 and where a dispute occurred the court would have to
be satisfied that the percentage set was reasonable.
It would be akin to approval
proceedings in respect of infants.
Question 51: Do you consider that in personal injury claims where the solicitor
accepts liability for paying the claimant’s disbursements if the claim fails, the
maximum fee should remain at 25%? If not, what should the maximum fee be?
Should the limit be different in different categories of cases?
No but see response to Question 50.
Question 52: Do you consider that there should be a maximum fee that lawyers
can recover from damages in non-personal injury claims? If so, what should
that maximum be and should the maximum fee be different in different
categories of cases?
No.
In non personal injury claims where parties are of equal bargaining power they
should be permitted to enter into funding arrangements on whatever basis they
choose.
Question 53: How should disbursements be financed by claimants operating
under DBAs?
Disbursements will continue to be financed by solicitors as they are under the
present system via excess profits recovered as success fees in the pursuit of
successful claims. Also BTE insurance, loans, union funding and ATE insurance will
exist as a means of supporting the finance of disbursements.
Please also see our response to section 2.2 and in particular, Questions 14 to 17
(inclusive).
Page 35 of 39
Appendix 1a
Inter-relationship between average costs and damages in pre and post litigated consolidated claims
Settled Pre or Post
Litigation
Jan - Dec 2008
Up to £5000. : Pre
Up to £5000. : Post
Number of
Claims
Sum Of Damages
(£)
Sum Of Costs
Agreed (£)
Average Damages
(£)
Average
Costs (£)
727
349
1,847,788.25
959,165.42
3,098,598.45
2,808,345.46
2,541.66
2,748.32
4,262.17
8,046.84
£5,000.01 to £15,000. : Pre
£5,000.01 to £15,000. : Post
205
189
1,684,234.96
1,649,637.20
1,296,411.68
2,199,437.58
8,215.78
8,728.24
6,323.96
11,637.24
£15,000.01 to £50,000. : Pre
£15,000.01 to £50,000. : Post
18
71
454,247.86
1,811,119.69
200,582.50
1,464,536.89
25,235.99
25,508.73
11,143.47
20,627.28
£50,000.01 to £100,000. : Pre
£50,000.01 to £100,000. :
Post
0
0.00
0.00
0.00
0.00
16
1,168,038.73
428,455.43
73,002.42
26,778.46
£100,000.01 + : Pre
£100,000.01 + : Post
0
18
0.00
4,964,869.82
0.00
1,070,837.53
0.00
275,826.10
0.00
59,490.97
1,593
14,539,101.93
12,567,205.52
Totals
Page 36 of 39
Appendix 1b
Inter-relationship between costs claimed, percentage success fee and ATE premium
All Files Less than 5k
All Files 5k - 15k
All Files 15k - 25k
All Files 25k - 50k
All Files 50k - 100k
All Files Over 100k
Totals
EL
EL
EL
EL
EL
EL
Files Less than 5k
Files 5k - 15k
Files 15k - 25k
Files 25k - 50k
Files 50k - 100k
Files Over 100k
Totals
Total Costs
Agreed (£)
6,001,096.62
3,811,826.52
1,167,520.59
1,200,571.35
723,700.00
903,987.62
Success Fee Agreed
(£)
940,541.70
555,744.37
184,614.92
161,642.05
110,236.90
106,886.79
13,808,702.70
2,059,666.73
SF as % of
Costs
15.67%
14.58%
15.81%
13.46%
15.23%
11.82%
ATE Agreed
(£)
637,725.80
270,896.89
54,877.61
54,322.64
24,827.00
10,935.25
ATE as % of
Costs
10.66%
7.11%
4.70%
4.52%
3.43%
1.21%
No of
Files
1060
391
74
55
23
18
14.92%
£1,053,585.19
7.63%
1621
4,571,843.06
3,174,552.83
907,390.59
1,054,231.35
659,200.00
605,737.62
691,161.41
453,022.94
134,922.06
134,303.07
103,136.34
59,744.81
15.12%
14.27%
14.87%
12.74%
15.65%
9.86%
508,171.50
245,195.99
50,105.05
48,714.85
23,677.00
10,342.00
11.12%
7.72%
5.52%
4.62%
3.59%
1.71%
811
330
59
45
20
13
10,972,955.45
1,576,290.63
14.37%
886,206.39
8.09%
1280
Page 37 of 39
Total Costs
Agreed (£)
1,341,291.29
634,026.94
260,130.00
125,840.00
64,500.00
119,500.00
Success Fee Agreed
(£)
239,705.51
102,721.43
49,692.86
25,945.97
7,100.56
17,777.73
SF as % of
Costs
17.87%
16.20%
19.10%
20.62%
11.01%
14.88%
ATE Agreed
(£)
125,361.80
25,700.90
4,772.56
5,607.79
1,150.00
593.25
ATE as % of
Costs
9.35%
4.05%
1.83%
4.46%
1.78%
0.50%
No of
Files
234
60
15
9
3
3
2,545,288.23
442,944.06
17.40%
163,186.30
6.41%
324
72,240.79
3,246.75
0.00
20,500.00
0.00
0.00
5,637.29
0.00
0.00
1,393.01
0.00
0.00
7.80%
0.00%
0.00%
6.80%
0.00%
0.00%
3,352.50
0.00
0.00
0.00
0.00
0.00
4.64%
0.00%
0.00%
0.00%
0.00%
0.00%
11
1
0
1
0
0
Totals
95,987.54
7,030.30
7.32%
3,352.50
3.49%
13
Other Files Less than
5k
Other Files 5k - 15k
Other Files 15k - 25k
Other Files 25k - 50k
Other Files 50k - 100k
Other Files Over 100k
15,721.48
0.00
0.00
0.00
0.00
178,750.00
4,037.49
0.00
0.00
0.00
0.00
29,364.25
25.68%
0.00%
0.00%
0.00%
0.00%
16.43%
840.00
0.00
0.00
0.00
0.00
0.00
5.34%
0.00%
0.00%
0.00%
0.00%
0.00%
2
0
0
0
0
2
194,471.48
33,401.74
17.18%
840.00
0.43%
4
PL Files Less than 5k
PL Files 5k - 15k
PL Files 15k - 25k
PL Files 25k - 50k
PL Files 50k - 100k
PL Files Over 100k
Totals
RTA Files Less than 5k
RTA Files 5k - 15k
RTA Files 15k - 25k
RTA Files 25k - 50k
RTA Files 50k - 100k
RTA Files Over 100k
Totals
Page 38 of 39
Appendix 2
Damages up to 5k (Pre Lit)
2541.661967
37%
Average Damages
Average Costs
4262.171183
63%
Damages up to 5k (Post Lit)
2748.324986
25%
Average Damages
Average Costs
8046.835129
75%
Page 39 of 39
Kennedys is a trading name of Kennedys Law LLP. Kennedys Law LLP is a limited liability partnership
registered in England and Wales with registered number OC353214 and registered office at 25
Fenchurch Avenue, London, EC3M 5AD.
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