Success fees in mesothelioma claims
The claimant sought leave to appeal, which was rejected firstly by Master Rowley.
Moutarde v SIG Logistics
This was a living mesothelioma claim dealt with by our Birmingham Office.
Whilst damages were agreed in the gross sum of £135,000, prior to the assessment of damages hearing on 23 January 2020, the parties couldn’t agree on the wording of the Tomlin Order, providing for payment of the cost of any non-NHS funded medical treatment, such as immunotherapy. In particular, the claimant sought to argue that the wording of the order should not be limited to treatment provided in the UK only.
Although an order was eventually agreed, on the morning of the hearing, the parties were not agreed about the costs order. Whilst the claimant sought the costs of the action, to include the costs of the hearing, the defendants sought to argue that the claimant pay the costs of the hearing, as a result of their unreasonable conduct, in failing to agree upon the words of the order, before the costs of the hearing were incurred.
The issue was subsequently resolved by Mr Justice Stewart who, following detailed review of the correspondence passing between the parties, dismissed the defendant’s application for costs and ordered that the defendant pay the claimant’s costs of the action, to include the costs of the hearing.
When it came to costs, the claimant’s Bill of Costs provided for a 100% success fee on the costs incurred by him. This was on the basis that, whilst the schedule to the Tomlin Order had been agreed before the hearing, the parties were not agreed about the costs order, with the result that the case had concluded at trial within the meaning of the old CPR rule 45.24 (1) (a).
In their Points of Dispute, the defendants disputed this and argued that the matter had concluded before the trial had commenced, under the old CPR rule 45.24 (1) (b) (i), with the result that a 27.5% success fee should apply.
Although the parties were able to reach agreement on the remainder of the Bill of Costs, this one discrete point came before Master Rowley on 17 November 2020.
At this hearing, the defendants were successful in reducing the claimant’s success fee from 100% to 27.5%. This was on the basis that Master Rowley felt that the costs question is not a contested issue that is sufficient to consider the case to be concluded at trial and, on that basis, the case had already been concluded for the purposes of the old CPR 45.
He went on the say that the fixed 100% success fee was designed to provide the claimant with additional protection should there be a loss at trial and, in this particular case, there was no feasible way that the claimant could lose, given that damages had already been agreed.
The claimant sought leave to appeal, which was rejected firstly by Master Rowley and then again on the papers by Mr Justice Johnson.
An oral application for permission to appeal was subsequently made on the basis that Master Rowley had erred in law, in finding that a dispute about the costs order to be made on the claim, that was determined at a hearing, did not fall within the scope of a final hearing or trial.
This was heard by Mr Justice Calver who, in refusing permission to appeal, held that Master Rowley had been right in limiting the claimant’s success fee to 27.5%. He pointed out that the costs of the main action had been agreed in principle, with the only issue in dispute the costs of the hearing, which was not sufficient to turn the claim into one that was concluded at trial. Furthermore, to find that the matter had been concluded at a final hearing/trial would effectively incentivise claimants to leave discrete points unresolved, in the hope of securing a 100% success fee, without any of the risks of losing at trial.
This decision, whilst not authority to be cited at court, does give us some guidance as to the circumstances in which a case is likely to be considered settled prior to a hearing and, what issues need to remain in dispute, for it to be considered settled at a final hearing/trial.