The Supreme Court Costs Office
No. 20 of 2005
Paul Cannon v Mid Essex Hospital Services NHS Trust
23 March 2005
His Honour Judge Mars-Jones QC Sitting with One Assessor
The issue in the case was the appropriate percentage to be allowed to the claimant's solicitors as a success fee, under their CFA.
The matter originally come before Mr Lambert one of the Costs Officers in the SCCO who allowed an uplift of 67% but on appeal to the Costs Judge, (technically sitting as a Deputy District Judge) the Costs Judge increased the success fee percentage to 100%.
The case involved a claimant who suffered injuries as a result of DVT and in his reserved Judgment the Costs Judge had held:
"On the information available to the claimant's solicitors at the time they entered into the CFA with a claim that there was, as summarised in Mr Hutton's Skeleton, a very grave doubt as to whether this was a winner or a loser".
The Judge on appeal held that he could not interfere with the Costs Judge's decision because it was well within 'the generous ambit within which a reasonable disagreement is possible"
The Judge went on to uphold the Costs Judge's decision that it is not permissible to use hindsight when assessing the correct level of success fee and reliance was placed by the defendant's Counsel on Practice Direction CPD 11.7 and CPR 44.17.8. The Judge expressly rejected the defendant's Counsel's submission that the wording at paragraph 11.7 of the CPD does not preclude the use of hindsight in assessing the correct level of the success fee in an appropriate case.
The Judge also felt that the Costs Judge had been correct to reject the defendant's Counsel's submission that he should have imposed a two stage success fee in this case 67% later dropping to 5% or alternatively a three stage success fee dropping in two stages from 67% to 20% and then down to 5%. The Judge held that the Costs Judge had exercised his Judgment correctly in that respect also although this point is now of course rendered academic by the decision of the Court of Appeal in KU v Liverpool Corporation.
The following point also rejected by the Judge namely that the fees of the costs draftsman for the claimant should have been charged as a disbursement and not part of the profit costs thereby attracting the success fee uplift. The Judge was referred to the cases of Smith Graham - Lord Chancellor [1999] 2 Costs LRJ 55 and Stringer v Copley a decision on the 11 June 2002 of His Honour Judge Cook which supported the contention that the costs draftsman was to be treated as if he was formally employed by the solicitors and therefore that the work done by him and the charge made by him therefore was correctly included as part of the solicitor's charges.