Lamont v Burton [20071 EWCA Civ 429 CA

Appellant appealing against the decision of a Judge to award the respondent costs

that included a success fee of 100%.          The respondent had instructed solicitors

under a CFA and had issued proceedings. Liability had been admitted and no defence filed. A Part 36 payment had not been accepted and the case went to trial. The claimant was awarded a sum falling short of the Part 36 payment with the Judge awarding the claimant his costs up until the latest date on which the Part 36 payment could have been accepted, making a summary assessment which included the sum representing base costs and pursuant to CPR 45.16 a success fee of 100%. It was common ground that the claim as concluded at trial the issue being whether 100% was mandatory in all cases or whether there was a discretion to vary.

 

It was held that while there might well be a case for deciding where a claimant failed to beat a Part 36 offer or payment he should be allowed only the same success fee as he could have recovered had he accepted was not the effect of CPR. The claimant was entitled to 100% success fee in accordance with the success fee prescribed by Part 45. The court would not use Part 44 to circumvent the mandatory provisions of Part 45 and reinforces the message in the case of Butt v Nizami that the fixed costs prescribed by Part 45 are just that — fixed and arguments about reasonableness are not permitted.

 

Dahele v Thomas Bates & Son Ltd [2007] EWHC 90072 (Costs) Master Haworth Asbestosis claim settling at the door of the court on the day of trial. Fixed success fee of 27.5% where the claim concludes before a trial has commenced.                                                      100%
success fee claimed. Counsel's success fee fixed at 75% if the claim concludes 21 days or less before the date fixed for commencement of the trial.

 

A lacuna in the rules being the reference in table 7 to Rule 45.25 of settlement "where the claim concludes 21 days or less before the date fixed for commencement of the trial'. Settlement achieved on the day of the trial itself ie: at court, attracts