COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ALTRINCHAM COUNTY COURT
His Honour Judge Tetlow
(On appeal from Deputy District Judge Buckley)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE DYSON
LADY JUSTICE SMITH
| Tony Lamont
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Mr Cox (instructed by Messrs Colemans Ctts) for the Defendant/Appellant
Hearing dates: 24 April 2007
Crown Copyright ©
Lord Justice Dyson : this is the judgment of the court.
The relevant rules
"44.1 This Part contains general rules about costs and entitlement to costs.
44.3 (1) The court has discretion as to
(a) whether costs are payable by one party to another;
(b) the amount of those costs; and
(c) when they are to be paid.
(4) In deciding what order (if any) to make about costs, the court must have regard to all the circumstances, including
(a) the conduct of all the parties;
(b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and
(c) any payment into court or admissible offer to settle made by a party which is drawn to the court's attention, and which is not an offer to which costs consequences under Part 36 apply.
(Part 36 contains further provisions about how the court's discretion is to be exercised where a payment into court or an offer to settle is made under that Part).
(6) The orders which the court may make under this rule include an order that a party must pay
(a) a proportion of another party's costs;
(b) a stated amount in respect of another party's costs;
(c) costs from or until a certain date only;
44.6 A party may recover the fixed costs specified in Part 45 in accordance with that Part."
"45.15 (1) This Section sets out the percentage increase which is to be allowed in the cases to which this Section applies.
(Rule 43.2(1)(l) defines 'percentage increase' as the percentage by which the amount of a legal representative's fee can be increased in accordance with a conditional fee agreement which provides for a success fee)
(2) This Section applies where
(a) the dispute arises from a road traffic accident; and
(b) the claimant has entered into a funding arrangement of a type specified in rule 43.2(k)(i).
(Rule 43.2(k)(i) defines a funding arrangement as including an arrangement where a person has entered into a conditional fee agreement or collective conditional fee agreement which provides for a success fee).
(3) This Section does not apply if the proceedings are costs only proceedings to which Section II of this Part applies.
(5) The definitions in rule 45.7(4) apply to this Section as they apply to Section II.
(6) In this Section
(a) a reference to 'fees' is a reference to fees for work done under a conditional fee agreement or collective conditional fee agreement;
(b) a reference to 'trial' is a reference to the final contested hearing or to the contested hearing of any issue ordered to be tried separately;
(c) a reference to a claim concluding at trial is a reference to a claim concluding by settlement after the trial has commenced or by judgment; and
45.16 Subject to rule 45.18, the percentage increase which is to be allowed in relation to solicitors' fees is
(a) 100% where the claim concludes at trial; or
(b) 12.5% where
(i) the claim concludes before a trial has commenced; or
(ii) the dispute is settled before a claim is issued.
45.18 (1) This rule applies where the percentage increase to be allowed
(a) in relation to solicitors' fees under the provisions of rule 45.16; or
(b) in relation to counsel's fees under rule 45.17,
(2) A party may apply for a percentage increase greater or less than that amount if
(a) the parties agree damages of an amount greater than £500,000 or the court awards damages of an amount greater than £500,000; or
(b) the court awards damages of £500,000 or less but would have awarded damages greater than £500,000 if it had not made a finding of contributory negligence; or
(c) the parties agree damages of £500,000 or less and it is reasonable to expect that if the court had made an award of damages, it would have awarded damages greater than £500,000, disregarding any reduction the court may have made in respect of contributory negligence.
(3) In paragraph (2), a reference to a lump sum of damages includes a reference to periodical payments of equivalent value.
(4) If the court is satisfied that the circumstances set out in paragraph (2) apply it must
(a) assess the percentage increase; or
(b) make an order for the percentage increase to be assessed."
Background to Section III of Part 45
"22 Changes were made to the Rules of Court. Some of these changes, and in particular the provisions of Sections II to V of CPR45, were introduced following "industry wide" discussions under the aegis of the Civil Justice Council. Agreement was reached on the recoverable costs in the different situations covered by the various sections.
23. It seems to me clear that the intention underlying CPR 45.7-14 was to provide an agreed scheme of recovery which was certain and easily calculated. This was done by providing fixed levels of remuneration which might over-reward in some cases and under-reward in others, but which were regarded as fair when taken as a whole."
The costs decisions in the courts below
Deputy District Judge
His Honour Judge Tetlow
The claimant's submissions