Kerry Underwood

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The matters dealt with in this piece are examined in great detail in my three volume, 1,300 page book Personal Injury Small Claims, Portals and Fixed Costs – price £50 and available from Underwoods Solicitors here.

Kerry Underwood offers consultancy services in relation to this and other matters and details are here.


Lejonvarn v Burgess & Anor [2020] EWCA Civ 114

the Court of Appeal considered in detail the type of conduct that can lead to an indemnity costs order, including failure to beat a defendant’s early Part 36 offer, and the relevance of the costs budget.

Generally, failure to beat a defendant’s Part 36 offer will not result in an order for indemnity costs, but rather the failure of the winning claimant to recover post Part 36 costs, as well as having to pay the defendant’s post Part 36 costs.

Here the claimants lost completely.

The claimants alleged that the defendant was negligent in the design of their garden, which he had carried out free of charge.

There had been a trial on the issue of whether the defendant owed a duty of care and that issue went to the Court of Appeal, which held that he did, but at the substantive trial the claimants failed badly and were awarded no damages.

The trial judge dismissed the claims and awarded the defendant her costs on the standard basis, and the issue before the Court of Appeal was whether indemnity costs should have been ordered.

The defendant had made a Part 36 offer of £25,000 three weeks after proceedings had been issued; it was not accepted.

There were three issues before the Court of Appeal:

(i) whether this was a case in which the claimants’ pursuit of what were described as “speculative, weak, opportunistic or thin claims” could properly be described as out of the norm such as to warrant an order for indemnity costs;

(ii) whether the claimants’ failures to beat the defendant’s Part 36 offer, made at a very early stage in the proceedings, either on its own or taken together with the pursuit of these particular claims, also meant that indemnity costs should be ordered;

(iii) the relevance, if any, of the fact that the defendant’s approved costs budget was £415,000, whereas any indemnity basis assessment would start at the defendant’s actual costs figure of not less than £724, 265. (Paragraph 4)

On the facts the Court of Appeal held that the claimant should have realised, after the Court of Appeal judgment in relation to there being no contractual liability, that the remaining claims were so speculative/weak that they were very likely to fail, and should not be pursued.

Consequently, indemnity costs were awarded on this basis from one month after the Court of Appeal judgment on the breach of contract point.

On the facts here, the Court of Appeal held that the claimants’ failure to accept the very early Part 36 offer of the defendant justified an indemnity costs order, but only from one month after the Court of Appeal judgment.

Consequently, on the facts of the case, it did not entitle the defendant to any extra indemnity costs over and above those awarded on the weak case basis.

As to Part 36, the court said that the facts here were “relatively extreme” and wholly rejected the argument that there was any presumption that a defendant should ever get indemnity costs due to the claimant failing to beat the defendant’s offer.

That was most certainly not what the Civil Procedure Rules said, and it was not the intention of Parliament.

On the costs budget point, the Court of Appeal said that once an order for indemnity costs is made, any approved budget becomes irrelevant.


“96. Secondly, for the reasons explained in Section 8.2 above, there is as a matter of principle no overlap between a costs budget, which will have been approved on the basis of a projected series of figures for costs that were assessed as reasonable and proportionate, and the actual costs to be assessed by reference to the indemnity basis (where reasonableness might still be an issue, but proportionality is not). Thus, even if there had been an approved budget figure, it could not affect whether or not the court should make an order for indemnity costs.”



A sensible, helpful and well-reasoned judgment which should finally put to bed any submission that, absent something out of the norm, a defendant can expect indemnity costs simply because the claimant failed to beat the defendant’s Part 36 offer.

Some of our less bright colleagues at the Bar still do not get it, so yet again I will spell it out.

When a claimant wins, but fails to beat a defendant’s Part 36 offer, that winning claimant is punished severely in two ways.

Firstly, that winning claimant does not recover its costs for the post Part 36 expiry period.

Secondly that winning claimant has to pay the defendant’s post Part 36 expiry costs.

I remember when growing up being bemused by TV reports of severely injured winning plaintiffs as they then were, getting nothing “due to legal reasons” that is failing to beat a payment in the court.

So you win and get nothing and indeed outside the QOCS protected world of personal injury you can win and be bankrupt.

That is precisely why QOCS limits the penalty on a Part 36 event to the damages and costs recoverable by the claimant.

That, ladies and gentleman, is the extreme penalty as a claimant.

The position of a losing defendant who has failed to come in at less than a claimant’s Part 36 offer is entirely different.

They would just pay the costs of losing so a claimant’s Part 36 offer would be pointless.

That is why a claimant who matches or beats its Part 36 offer gets indemnity costs; otherwise there would be no penalty, on an offer-ignoring defendant.

It is not rocket science but is apparently beyond the Queen’s Counsel in this case who described it as “scandalous” and, on any view, “an oversight”.

The Court of Appeal in a hard hitting attack said that “the making of these colourful submissions ended up blinding both Mr Flannery and the judge from the real position.”(Paragraph 71) and that those “submissions about the Rules were misconceived.” (Paragraph 72).


Advocates who make such submissions in the future must be at risk of a Section 51 wasted costs order.

Written by kerryunderwood

February 28, 2020 at 2:06 pm

Posted in Uncategorized


leave a comment »

The matters dealt with in this piece are examined in great detail in my three volume, 1,300 page book Personal Injury Small Claims, Portals and Fixed Costs – price £50 and available from Underwoods Solicitors here.

Kerry Underwood offers consultancy services in relation to this and other matters and details are here.


Chapelgate Credit Opportunity Master Fund Ltd v Money & Ors [2020] EWCA Civ 246

the Court of Appeal upheld the High Court’s ruling imposing a costs order on a litigation funder above the Arkin cap, that is a cap limiting the order to a sum equal to the funding provided.

That original judgment –

Davey v Money & Anor [2019] EWHC 997 (Ch)

was reported by in my blog –


The Court of Appeal took into account the fact that funders could now protect themselves with After-the-Event insurance, something which may have been less easy at the time of the Arkin case –

Arkin v Borchard Lines Ltd (Nos 2 and 3) [2005] EWCA Civ 655.

In waiving its requirement that its funded claimant obtain ATE insurance, the funder had substantially increased the successful Respondents’ financial exposure.

Here, from the date of the funding agreement, the funder funded all the claimant’s costs, and stood to receive a profit of five times its expenditure.

The judge had also been entitled to consider whether the Arkin cap would leave Respondents out of pocket.

Given the serious allegations against the Respondents, the nature of which meant they could not be expected to share lawyers, their costs would inevitably significantly exceed the funder’s investment.

“Judges…retain a discretion and, depending on the facts, may consider it appropriate to take into account matters other than the extent of the funder’s funding and not to limit the funder’s liability to the amount of that funding.”

Written by kerryunderwood

February 28, 2020 at 9:34 am

Posted in Uncategorized


with 2 comments

The matters dealt with in this piece are examined in great detail in my three volume, 1,300 page book Personal Injury Small Claims, Portals and Fixed Costs – price £50 and available from Underwoods Solicitors here.

Kerry Underwood offers consultancy services in relation to this and other matters and details are here.


Regulation (EC) No 861/2007 of the European Parliament and of the Council establishing a European Small Claims Procedure (the Regulation) substantially came into force on 1 January 2009.

It only applies to cross-border disputes and thus cannot be used by a person in England and Wales suing another person or body in England and Wales.

Under the transitional provisions following the United Kingdom’s exit from the European Union on 31 January 2020, the Procedure will remain in place until at least 31 December 2020.

The European Small Claims Procedure (the Procedure) is available to litigants as an alternative to the procedures existing under the laws of the Member States.

The Procedure covers claims up to €5,000 in any EU country except Denmark.

The Procedure includes claims other than for payment of money and can be used where a claim is defended or undefended.

The Procedure is intended to be a relatively speedy and less costly procedure.

A judgment given in the European Small Claims Procedure is recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition.

The Procedure does not apply to:

  • Disputes entirely within one jurisdiction.
  • Revenue matters
  • Customs matters.
  • Administrative matters.
  • A state’s liability for acts and omissions in the exercise of its authority.
  • The status or capacity of natural persons.
  • Property rights arising out of marriage.
  • Maintenance obligations.
  • Wills and succession.
  • Bankruptcy and insolvency.
  • Social security.
  • Arbitration.
  • Employment.
  • Tenancies of immoveable property.
  • Privacy claims.

Thus it does apply to personal injury claims and this will potentially be a significant jurisdiction if, as planned, the personal injury small claims limit goes up to £5,000 for road traffic accident claims and £2,000 for other claims.

At present, these increases are due to come in on 1 August 2020, no details has yet been given – for example whether the key date is the date of the cause of action, or date of placing on the portal, or proceeding to Stage 3, or issuing Part 7 proceedings.

However, the Procedure may have a very short life as the transitional provisions following the United Kingdom’s departure from the European Union end just five months later on 31 December 2020.

It may be that this is one area which is made a permanent feature of relations between the jurisdictions of the United Kingdom, including England and Wales, and the members of the European Union.

Watch this space.



To start the procedure, “Form A” must be filled in.

Any relevant supporting documents, such as receipts, invoices, etc. should be attached to the form.

Form A must be sent to the court that has the jurisdiction.

In most EU Member States, it will be necessary to pay a fee to the court for lodging the application commencing the Procedure.

Once the court receives the application form it must fill in its part of the “Answer Form”.

Within 14 days of receiving the application form, the court should serve a copy of it, along with the Answer Form, on the defendant.

The defendant has 30 days to reply, by filling in his or her part of the Answer Form.

The court must send a copy of any reply to the plaintiff within 14 days.

Within 30 days of receiving the defendant’s answer (if any) the court must either give a judgment on the small claim, or request further details in writing from either party, or summon the parties to an oral hearing.

An oral hearing takes place only in those cases where it is not possible to give judgment on the basis of the written evidence or if one of the parties requests an oral hearing and the court takes the view that this is necessary to decide the case or in the interests of fairness.

If there is an oral hearing, it is not necessary to be represented by a lawyer and if the court has appropriate equipment the hearing should be carried out through videoconference or teleconference.

With the certificate issued by the court and a copy of the judgment, the judgment is enforceable in all the other Member States of the European Union, without any further formalities.

The only reason that enforcement in another Member State can be refused is if it is irreconcilable with another judgment in the other Member State between the same parties.

Enforcement takes place in accordance with the national rules and procedures of the Member State where the judgment is being enforced.

The court will usually award expenses at the end of the case to the person who is the successful party.

The expenses awarded must be proportionate to the claim and the court should not award any disproportionate expenses to cover lawyers’ fees.

Apart from payment of the court fee, parties should bear in mind that there are expense implications if they request a hearing and the court agrees to this.

In such an event, parties can expect to have to pay the costs of any expert and other witnesses, of translation of documents and of any special procedure used for the hearing, such as video-conferencing.

The court must bear in mind the extra costs involved if the case requires oral testimony from the parties and any witnesses, and will take expert evidence or oral testimony only if it is not possible to give the judgment on the basis of other evidence.


CPR Part 78

Subject to the provisions of the Regulation, the Procedure is governed by the procedural law of the member state in which the procedure is conducted (Article 19).

For England and Wales the majority of the relevant procedural rules are in Section II of Civil Procedure Rule 78.

The CPR 78 provisions dealing with the European Small Claims Procedure came into force on 1 January 2009, at the same time as the substantive provisions of the Regulation came into effect.

CPR 78 is divided into two sections:

  • Section I – European Order for Payment Procedure.
  • Section II – European Small Claims Procedure, and it is Section II, paragraphs 12 – 22 that deal with the Small Claims Procedure.

CPR 78.28 deals with mediation in Small Claims.

In England and Wales claims for £100,000 or less must be commenced in the County Court.

Therefore, with the €5,000 limit, Procedure claims will be County Court claims.

CPR 78.14(1) provides that Procedure claims are treated as if they were allocated to the small claims track.

Separately, article 5 of The High Court and County Courts Jurisdiction (Amendment) Order 2008 (SI 2008/2934) allows the County Court jurisdiction over Regulation claims.

Further, article 7 of that order provides that claims brought under Article 4 of the Regulation “must be commenced in [the] [C]ounty [C]ourt”.

Practice Direction 78 – European Procedures – supplements CPR 78, paragraph 10 onwards applies.



The unsuccessful party will generally pay the costs of proceedings to the other party as long as they were necessarily incurred and proportionate.

The court will appraise the costs on the basis that costs will not be awarded if they are disproportionate to the value of the claim or were incurred unnecessarily and that includes the costs incurred by the successful party if that party had instructed a lawyer.

This is in contrast to the general position with a claim on the small claims track in England and Wales in which only limited costs are usually recoverable.


Proportionality and Costs in the Procedure


Senior v Blue Air Management Solution SRL, Liverpool County Court ,11 September 2019

a Circuit Judge gave guidance on costs and proportionality in flight delay claims brought under the European Small Claims Procedure, where costs are recoverable in what would otherwise be a small claim.

Here the District Judge had cut the costs from £1,401.24 including court fees, to £205 as being the “necessarily and incurred proportionate costs” but gave no reasons.

The Circuit Judge held that following the Court of Appeal’s decision in

West v Stockport NHS Foundation Trust [2019] EWCA Civ 1220

this short form of decision was unacceptable and that a reviewing court must be able to see why a substantial costs reduction had been made and gave guidance on how costs in low value flight delay claims under the European Small Claims Procedure should be dealt with.

I dealt with the West case in my blog –


The Costs Schedule should first be considered on a line by line basis and only after that exercise should the judge consider whether the resultant total is disproportionate, having regard the factors in CPR 44.3(5) and 44.4(1).

If the total is disproportionate, then the judge should look again at the various stages of the litigation to see if a proportionality reduction can be made without touching unavoidable elements, such as court fees.

There should be a clear and transparent explanation of the exercise.

The appeal here succeeded for lack of reasons.

In another article I will look at the use of the European Small Claims Procedure and the costs implications of doing so.

I am grateful to Jatin Patel, a Trainee Solicitor at Underwoods Solicitors, for much of the research and work in relation to this piece.

Written by kerryunderwood

February 28, 2020 at 7:32 am

Posted in Uncategorized


with 4 comments

The matters dealt with in this piece are examined in great detail in my three volume, 1,300 page book Personal Injury Small Claims, Portals and Fixed Costs – price £50 and available from Underwoods Solicitors here.

Kerry Underwood offers consultancy services in relation to this and other matters and details are here.


I have waited a long time to write up this decision, which, apart from being distinguishable on its facts in most other cases, is wrongly decided and one of the most anti access to justice decisions, even by the current Court of Appeal, which means it was faced with some stiff opposition.

Just a reminder that this is the Court of Appeal which has brought you:

  • UNISON – upholding Employment Tribunal fees – subsequently banned 7-0 by the Supreme Court;
  • lawfulness of Johnson’s proroguing Parliament – hammered 11-0 by the Supreme Court;
  • Mitchell and relief from sanctions – had to overrule itself within months in Denton;
  • Bott & Co Solicitors Ltd v Ryanair – allowing Ryanair to respond direct to solicitors’ clients avoiding the solicitor getting paid – in clear breach of the Supreme Court’s own ruling in Gavin Edmondson – Supreme Court has given permission to appeal;
  • Swift v Carpenter [2020] EWCA Civ 165i – No Protective Costs Order.


Here I consider the Court of Appeal’s case:


Herbert v HH Law Limited [2019] EWCA Civ 527

the Court of Appeal considered the appropriate success fee a routine low value personal injury claim. The decision has been further confused by hopeless misreporting and some unfortunate comments by the successful lawyers. I understand, and support, the cab rank principle but gloating about a decision which threatens access to justice for most of the population is a different kettle of fish.

PJ Kirby QC, who appeared for the successful Ms Herbert in the Court of Appeal, quoted various headlines in a piece entitled “Herbert v HH Law: What does it mean for you?”

“Upsurge in costs challenges looms after court rules on 100% success fee … … The ruling will set alarm bells ringing in the personal injury sector, with many firms having adopted the policy of setting a 100% success fee and claiming the maximum limit of 25% of total damages.” Law Society Gazette

“Success fee ruling could open assessment “floodgates”” – Litigation Futures

“… few can doubt that life for low-value personal injury claimant solicitors has become increasingly difficult over the past decade. … Herbert v HH Law …provides no respite.” Partners in Costs

“Court of Appeal rules against blanket 100% success fee in low-value PI claims since LASPO” – Association of Costs Lawyers

“Court of Appeal holds that 100% success fee lawful provided solicitor can show informed consent … No problem if you see your client and explain” – Kerry Underwood

“Going forwards, it is likely to be an uphill struggle, when entering into new CFAs, to show that the average lay client has given informed consent to a success fee that does not fairly reflect the risks of the case.” Simon Gibbs of GWS.



Adam Grant, Policy Officer at the Association of Costs Lawyers, in his Practical Law Dispute Resolution Blog of 20 May 2019 – Solicitor/client success fees and Herbert v HH Law Ltd said:

“Today the deductions of the success fee from damages are, in many cases, merely making up the shortfall in costs not recovered between the parties on successful cases, let alone the unsuccessful ones. To have this reduced significantly below the statutory cap could well leave a black hole in many a firm’s finances.”

That may in fact be what is happening, as indeed happened here, but it is entirely the wrong way of billing under the Solicitors Act 1974.

What should happen is that a final statute bill under the Solicitors Act 1974 be delivered to the client for unrecovered solicitor and own client costs.

Given that nearly all solicitors cap the total charge to the client, and not just the success fee element, at 25% of damages, the success fee very often does not come into play.

Mr Grant’s argument that those charges will be subject to scrutiny as the client does not know how much they will be, is misinformed.

That is the position in every hourly rate retainer and a Conditional Fee Agreement is an hourly rate retainer with the twist that the client does not have to pay on defeat.

Solicitors are obliged in all cases, including Conditional Fee Agreement cases, to provide the client with full costs information, estimates and regular updates.

The case did not decide that on a solicitor and own client assessment the additional liability in a simple personal injury case should never exceed 15%.

What it did decide is that if a risk assessment is not to be undertaken, then the solicitor must obtain informed consent from the client in order to satisfy CPR 46.9(3), and that would require the client’s approval after a full and fair explanation.

In this case that would have required the solicitor to tell the client that the success fee took no account of individual risks, but was charged as standard.

The fact that very many firms used the same business model of 100% success fees in all cases did not avoid this requirement.

Practical Law correctly reported the decision:

“… personal injury practices are likely to have fees reduced on assessment if they did not advise clients that success fees were not set on the basis of risk assessment”.


After-the-Event Insurance Premium Cannot Be Challenged

The Court of Appeal also considered whether the cost of the After-the-Event insurance premium should be treated as a solicitor’s disbursement, or merely an entry in the client cash account.

It held that a disbursement qualifies as a solicitor’s disbursement if:

“(1) it is a payment which the solicitor is, as such, obliged to make whether or not to put in funds by the client, such as court fees, counsel’s fees, and witnesses’ expenses; or

(2) there is a custom of the profession that the particular disbursement is properly treated as included in the bill as a solicitors’ disbursement.”

It held that an After-the- Event insurance premium fell into neither category, being a premium on a policy of insurance by which the client was insured pursuant to a contract they entered into with insurer.

It was not a litigation cost at all and there was no evidence of a custom of including the premium within a solicitor’s bill to the client, as opposed to a between the parties’ bill.

Consequently, it need only appear in the cash account and is not susceptible to assessment, although under section 70 of the Solicitors Act 1974 the court also considers the cash account as well as the solicitor’s bill.

Practice Direction 46, paragraph 6.6(b) describes it as:

“An account that includes money received by the solicitor to the credit of the client and sums paid out of that money on behalf of the client, but excludes outgoing payments that were made in satisfaction of the bill.”

 Paragraph 6.19 of the Practice Direction states:

“After the detailed assessment hearing is concluded the court will

(a) complete the court copy of the bill so as to show the amount allowed;

(b) determine the result of the cash account.”

The purpose of the cash account is to enable the court to see the full extent of the solicitor’s financial dealings with the client, since it will show sums expended on items which have not appeared in the bill. The solicitor can only recover items which the court certifies have been reasonably charged in the bill. There is no obligation on the client to pay for anything that has not appeared in the bill.

Thus, it is essential to know what is and what is not a disbursement, since if, by accident or design, the solicitor misses a valid disbursement off the bill, it is irrecoverable from the client on a section 70 assessment.

The cash account deals with money expended by the solicitor on behalf of the client for anything which is not in the bill, or which ought not to be there and includes items which the solicitor is not bound by law or custom to pay.


The Success Fee Decision

Bizarrely, the original judgment – and of course on appeal it is always the original judgment, and not subsequent appeal decisions, which is under review –  was a paper assessment, by consent of the parties, with no oral hearing – see the judgment of District Judge Bellamy, 28 April 2017.

The District Judge found that there was no clear evidence that the client had given informed consent to incur the 100% success fee.

The supreme irony of this case is that in fact there was no success fee at all.

All of the costs actually charged to Ms Herbert, as compared with those recovered from the other side, could have been charged as unrecovered solicitor and own client costs.

However HH Law, presumably unaware of the law, and certainly unaware of the Underwoods Method, did not do so, but rather delivered a Solicitors Act 1974 statute bill wrongly describing the charge as a success fee and that wrongly described charge was the subject of the litigation, and ultimately the Court of Appeal decision.

HH Law Ltd submitted a witness statement from a Mr Craig Ralph dated 20 March 2017, which read, in part:

“6. As a firm, we considered that the easiest and most transparent way was to make a solicitor own client charge, by way of a success fee which the client could pay out of damages. The success fee would be based on the basic costs that we actually recovered from the other side, thus limiting the fee.

7. We considered that clients would readily understand that method in principle, and we also thought it was fair, as the client’s interests would be protected by the statutory cap on deductions from certain categories of damages of 25%. An individual client would therefore always retain 75% (at least) of his/her damages.

8. Conversely, charging the client an increased hourly rate, or requiring the client to pay hourly rates when only fixed costs were going to be recovered in many cases, seemed to us to be more cumbersome, result in the hardest fought and most difficult cases carrying the heaviest burden of irrecoverable costs and less fair.”

I cannot even begin to analyze the thinking behind that statement and method, particularly the idea that it is unfair for a client with the most difficult and hard fought case to risk paying more, albeit capped at 25% of damages.

Ben Williams QC, one of the top cost lawyers in the country, commenting on Simon Gibbs’ blog said:

“There is no obligation for a success fee to reflect risk between solicitor and own client, so long as the client appreciates the basis on which it is set. Why can’t a solicitor say: “you have two options – win or lose payment, or no win-no fee payment; for no win-no fee, I require a premium of 100 per cent to act on those terms. This premium is not based on risk, it is simply the consideration I stipulate for the CFA terms which I am not otherwise willing to give”? If the client chooses the latter option, why should he be able to revisit that?”

As one would expect from Ben Williams QC, this is absolutely correct.

It is something which judges appear not to understand; that is that the alternative to a success fee model which makes a reasonable profit for the solicitor to reflect the fact that they will not be paid if they lose, is to pay the full hourly rate win or lose.

The alternative is not some cooked up, half baked, unprofitable, unworkable scheme devised by Court of Appeal judges who have not the slightest idea what it is like to practice as a solicitor in the real world and spent their legal careers earning fat fees, win or lose.

Ben Williams also makes a point that I have always made, and that is that no business model can work if it simply puts a risk-taker in the same position as they would have been had they not taken the risk; very obviously no one would ever take a risk if that was the case.

The point is that the whole model of success fees being cost neutral is an utter nonsense – as I make crystal clear in my book on the subject – No Win, No Fee, No Worries.

Furthermore, given the particular success fee model, this does not work, even on its own terms.

The maximum success fee is 100%, and that is assumed to be appropriate if the risk is 50% – that is win one, lose one and you break even because you get a 100% success fee on the winner.

Let us assume that the charge in each case is £10,000.

If you charged, win or lose, the traditional business model, then by winning one case and losing one case you get paid £20,000.

On a no-win, no-win fee basis you get the following:


–  lost case                                 0

–  won case                               10,000

–  100% success fee                  10,000

Total                                         20,000

Thus the solicitor breaks even on that model, but gets no reward for taking the risk.

However, as Ben points out – and I set out his comment below – how does that work if the chances of winning are 40%? On the theoretical model the success fee would have to be over 100% for the solicitor to break even as compared with charging the full rate, win or lose.

However, the maximum success fee in any type of case is 100%.

I set out Ben Williams QC’s comments in full:

“(1) The whole notion that a success fee should only reflect the pure “burning cost” of risk, and should therefore be cost neutral across a solicitor’s book of cases, was always dubious, and should never have been accepted without challenge. It’s all very well to say that a solicitor who takes on 100 CFA cases on a 100% success fee will break even so long as she wins 50, which she will do on average (assuming 50/50 risk, else adjust figures as appropriate). But suppose he wins only 40? That is obviously a real possibility, as risk assessment is inherently uncertain. If this happens, she will not be able to pay her staff, and she goes bankrupt. That’s a risk that a solicitor who refuses CFA terms would not face. The solicitor taking on the CFA work ought to be able to charge a *premium* for this sort of risk. It is not enough to break even on a theoretical basis.

(2) A lot of solicitors will now be regretting the standard Law Soc CFA that says “this is not a contentious business agreement”. If the CFA was a contentious business agreement, the ability of client’s to attack success fees retrospectively would now be reduced. Compare the HH case to the failure of the challenge to the success fee under a non-contentious business agreement in Bolt Burdon v Tariq.

(3) The confirmation that an ATE premium is not a solicitor’s disbursement re-ignites an issue that the courts have always ducked: on what basis does the court purport to adjust the methodology of a policy if the substituted methodology could never have been obtained by the receiving party or her solicitor in the market? The court has no power to alter the policy itself. The court can only act if the client and solicitor took out an unreasonable policy. But how can the policy be unreasonable if there was not a better alternative that actually existed in the market?”

What the Court of Appeal in fact does, but in a clumsy and unhelpful way, is to make clear that to get any sort of workable success fee, the client must be seen, and a full explanation given.

PJ Kirby QC, who appeared for the successful Ms Herbert, said:

“It is possible to have 100% success fee the question is whether the client has given informed consent to the same. It is unlikely that a court would be satisfied that informed consent had been given unless there had been a face to face meeting with the client where the fees had been explained and where it had been made clear that the success fee that was being charged was not based on the risk involved in their particular case. It would probably also be necessary to explain that success fees had previously always been calculated by reference to risk and that a risk related success fee would be much lower. It may also be necessary to explain that other solicitors may charge a success fee by reference to the risk involved and that they would therefore deduct a smaller amount from the recovered damages.

Here is my write up of the original appeal decision of the Queen’s Bench Division of the High Court in

Herbert v HH Law Ltd [2018] EWHC 580 (QB).


Success Fee and Risk


Herbert v HH Law Limited [2018] EWHC 580 (QB)

the Queen’s Bench Division of the High Court upheld the decision of DJ Bellamy whereby he reduced the success fee in a road traffic accident case from 100% to 15% on a solicitor and own client assessment.

The court also upheld a finding that an After-the-Event insurance premium was a solicitor’s disbursement.

The Court of Appeal has now given leave to appeal against the High Court’s findings.

The District Judge accepted the defendant’s submission that CPR 46.9 “places the burden on the client to prove the charges are unreasonable. It also significantly restricts the scope of the court’s discretion to interfere with contractually agreed amounts through the mechanism of the presumptions.”

The District Judge took into account that the solicitors never met the client and “had little or no direct contact with the client.”

Paragraph 20 of the judgment quoting paragraph 12 of the District Judge’s judgment:

“The Claimant appears to have been referred to the solicitors (details unclear from the file) and the solicitors take instructions on the telephone. There is no face-to-face meeting subsequent to that discussion but there followed significant correspondence, terms and conditions, and documentation in relation to the CFA. There is no evidence on the file of any formal risk assessment, nor note of any discussion in relation to the success fee. Whilst accepting the retainer between solicitor and client is contractual in nature, the reality is that litigation funding of itself is complex, risk assessments and success fees add a further level of complication, as does the charging arrangement of the solicitors. This is an unsophisticated client dealing, by referral, with a claim for damages arising out of a road traffic incident, the circumstances of which appear from the file note relatively straightforward, it being a rear end collision with the claimant’s stationary car. It seems to me not a difficult hurdle in those circumstances for a Claimant to overcome to rebut the presumption of reasonableness in CPR 46.9(3). There is no clear evidence the Claimant approved either expressly or impliedly, with full knowledge, the cost to be incurred, and more particularly, a success fee of 100% could easily be said to be unusual both in nature and amount given the circumstances of the claim that were known to the solicitors at the time. Further, there is no risk assessment on the file that would in any event justify as being reasonable, a success fee of 100%’.”

The High Court held that approval required informed consent by the client and that “the simple refrain of freedom of contract establishes neither the presumptions nor the reasonableness of the success fee in the particular case.”

The High Court also held that risk was likely to be the primary factor in fixing the success fee (Paragraph 44).

The key paragraphs are 46 and 47:

46. Like the Judge, I accept that 46.9(4) is not free-standing and that CPR 46.9 must be read as a whole. Thus if a client applies for a reduction in the success fee, he may be met by evidence that he gave his informed approval to the percentage identified in the CFA. If so, the presumption in 46.9(3)(a) and/or (b) is likely to be satisfied and will be difficult to dislodge. Alternatively, if the presumption is not established, the costs judge will proceed to the assessment and hence the reasonableness of the success fee percentage.

47. Putting the point another way, if and insofar as HH took no account of the risk in the individual case and provided for a 100% uplift (subject to the 25% cap) in all cases by reason of its particular post-LASPO business model, I consider that informed approval would require this to be clearly explained to the client before she entered the agreement.”

This leaves open the question of whether a solicitor who has met the client and explained everything in the manner recommended in

Vilvarajah v West London Law Ltd [2017] EWHC B23 (Costs) 

is safe from attack on the success fee. 



This decision is all over the place, but it is not clear here what the basis of the charge to the client was.

The actual costs charged to the client was £691 plus VAT, being 25% of the damages.

The claim was an ex-portal RTA claim which settled for £3,400 after proceedings had been issued and, although it is not clear from the judgment, I am assuming that post-issue pre-listing fixed costs applied and if that is the case the recoverable costs are £1,840 being 20% of the damages plus £1,160 as per CPR 45.29 Table 6 B.

Here the solicitor and own client basis of charging was £118 an hour with 22 hours work done giving a total £2,596.

Thus the unrecovered solicitor and own client costs are as follows:


  • solicitor and own client costs      2,596
  • less recovered costs                    1,840

         Total                                             756

These are costs net of VAT, and as we have seen the actual charge to the client was £691 plus VAT.

Consequently, unless I am missing something, there was in fact no success fee at all in this case as all of the charge to the client fell within the unrecovered element of solicitor and own client costs.

Clearly £118 per hour is a very modest rate and appears not to have been challenged.

In those circumstances, the decision appears to be obiter, in the sense that the court did not need to rule on the success fee as in law no actual success fee was charged.

It is well established law that academic claims cannot be brought; in other words the client cannot bring a Solicitors Act 1974 challenge in relation to a bill never delivered, even if the retainer contained challengeable provisions.

If I am correct, and this decision is obiter, then of course it is not binding.

As far as I am aware there has been no successful challenge in any court in the country to the Underwoods Method, and contrary to some ill-informed comment, this decision supports, rather than challenges the Underwoods Method.

What solicitors may now well start to do, particularly given the increase in the small claims limit in personal injury matters, is to reserve the right to charge the full element of the unrecovered solicitor and own client costs, either completely uncapped, or possibly capped at say 40% of damages, and then charge a 15% success fee as well.

Obviously, this means that the client will receive far less of their damages than at present.

Whether that was clear to the Court of Appeal or not, I do not know, but it is blindingly obvious to anyone who actually considers these matters and has experience of them.

This is as Pyrrhic a victory as it gets – instead of all solicitors routinely capping the total charges to the client, be that unrecovered solicitor and own client costs and/or the success fee, at 25% of damages, solicitors will now be forced to adopt a different model.

The Underwoods Method avoids these challenges, and I have always advised capping the total charge to the client at 25% of damages.

However, as such reasonableness and generosity on the part of solicitors has been treated with complete contempt by the Court of Appeal, I see no reason why solicitors should continue to be so generous to their clients.

My advice now is to cap the total charge to the client at 40%, not 25%, but to charge the full unrecovered solicitor and own client costs at the full normal private rate.


Written by kerryunderwood

February 27, 2020 at 10:11 am

Posted in Uncategorized


with 4 comments


Swift v Carpenter [2020] EWCA Civ 165

the Court of Appeal considered the issue of the scope of Protective Costs Orders and the exercise of the court’s discretion and the need for speed in making an application, and the scope of the new CPR 52.19.

Here, the claimant sought a Protective Costs Order in relation to her appeal concerning the method of assessment of accommodation costs following a serious personal injury.

It was common ground that the claimant enjoyed Qualified One-Way Costs Shifting protection on the appeal, as in the proceedings at first instance.

The effect of QOCS is that no order for costs made against the claimant may be enforced without the permission of the court to the extent that the costs payable exceed the amount of damages and interest awarded.

The claimant argued that QOCS did not give her adequate protection and for all intents and purposes was meaningless as it still allowed her damages to be wiped out, even though there was no dispute on liability.

The Court of Appeal held that it was not appropriate to make a Protective Costs Order in a private case, but even if there was such a discretion, it would not have exercised it here.

The general purpose of a Protective Costs Order is to allow a claimant of limited means access to the court in order to advance their case without the fear of an order for substantial costs being made against them, a fear which would inhibit them from continuing with the case

 – see R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192.

In spite of the breadth of the court’s discretion under section 51 of Senior Courts Act 1981 and CPR 44, which the court here accepted gave it jurisdiction to make such an order “case law establishes that, as a matter of judicial policy and practice, we should not do so in the present case.”



Same old, same old right wing Court of Appeal, a serious blot now on the legal landscape.


The above quoted passage could have read:


“Parliament has told us in primary legislation that we can make Protective Costs Orders in private cases. The Civil Procedure Rules, approved by Parliament in secondary legislation, also say so.

But we do not like them because they give equality to individuals against massive multi-billion pound multi-national companies.

Cannot have that old boy can we?”


It really is a sickening judgment, parroting its own previous decisions in various cases, defying the will of Parliament to justify yet again defying the will of Parliament, and very obviously in this case depriving a very seriously injured person of access to justice.

Written by kerryunderwood

February 26, 2020 at 7:08 am

Posted in Uncategorized


with 6 comments

This piece, in slightly different form, first appeared on the Practical Law Dispute Resolution Blog.

The matters dealt with in this piece are examined in great detail in my three volume, 1,300 page book Personal Injury Small Claims, Portals and Fixed Costs – price £50 and available from Underwoods Solicitors here.

These principles, and the whole issue of Qualified One-Way Costs Shifting, is dealt with in my book – Qualified One-Way Costs Shifting, Section 57 and Set-Off – Available from me here for £15.

Kerry Underwood offers consultancy services in relation to this and other matters and details are here.



Alafco Irish Aircraft Leasing Sixteen Ltd v Hong Kong Airlines Ltd [2019] EWHC 3668 (Comm) (22 November 2019)

the Commercial Court held that a contract specifying that a party was entitled to “all reasonable costs and expenses” of litigation, in connection with preserving its contractual rights, meant that it was entitled to assessment of costs on the indemnity basis.

The parties had been involved in proceedings concerning a lease and the claimant sought costs on the indemnity basis, following a successful summary judgment application.

The High Court Judge saw no reason to depart from

Littlestone v MacLeish [2016] EWCA Civ 127

where tenants had covenanted to, “pay to the Lessor all costs and expenses (including legal costs…) which may be incurred by the Lessor… in or in contemplation of any proceedings under Sections 146 and 147 of the Law of Property Act 1925… or [in] the recovery or attempted recovery of arrears of rent or other sums due from the Lessee”.

It was held that, although that wording did not refer to an indemnity, it corresponded more closely with assessment on the indemnity basis than the standard basis.

Disagreeing with the decision in

Euro-Asian Oil SA v Credit Suisse AG [2017] EWHC B7 (Comm)

The court here considered that the reference to “all reasonable costs” rather than “all costs” in the clause in this case did not alter this position and Littlestone , where the court held that reasonableness did not affect the analysis, could not be distinguished.

Such wording did not exclude indemnity costs as, under CPR 44.3, whether costs were being assessed on the standard or the indemnity basis, a party was only entitled to recover costs that had been reasonably incurred.

The judge rejected an alternative argument that indemnity costs should be ordered because of the defendant’s conduct.


Ministry of Justice and HMCTS Launch Court Fee Refund Scheme

The Ministry of Justice and Her Majesty’s Courts and Tribunals Service have launched a court fee refund scheme, following a review in July 2018, in which it was discovered that court fees in certain proceedings had been charged above full cost recovery levels.

The refund scheme identifies court fees that have been overcharged, where the fee was set above cost, or mischarged, where the wrong fee was charged or where no charges should have been made at all.

A list of the overcharged and mischarged fees is set out in

Application for full or partial refund of court fees – Guidance document.

In relation to overcharged fees, a refund can only be claimed if one or more of the fees was paid between 22 April 2014 and 31 March 2018.

The amount that will be refunded depends on when the fee was paid.

A refund on mischarged fees can only be claimed in the circumstances described in the Guidance document.

The affected court fees include:

Specified Magistrates’ court fees, including commencing an appeal under the Licensing Act 2003, and an application for a warrant for commitment made in proceedings under the Child Support Act 1991.

Insolvency proceedings fees, specifically an application by consent or without notice within insolvency proceedings and an application with notice within insolvency proceedings.

Specified civil proceedings fees, including in relation to filing a request for detailed assessment of costs in the Court of Protection, the appointment and daily hearing fees of a judge of the Commercial Court or a judge of the Technology and Construction Court appointed as an arbitrator under section 93 of the Arbitration Act 1996, and an application for the restoration of a company to the register under section 1029 of the Companies Act 2006.

Specified Court of Protection fees relating to applications, appeals and hearings.

A refund can only be claimed where the fee was paid directly to the court, or where a party was ordered to pay their opponent’s court fees.

Applications must be made using the form Application for full or partial refund of court fees.

Guidance on how to fill out the form is set out in Guidance: Claim a court fee refund. Interest on refunds will be paid at a flat rate of 0.5%.

The aim is that applications will be processed within 20 working days of receipt of a completed form.


Court Fee Remission and Recoverability

A claimant who could have applied for remission of the court fee does not do so and wins the case.

Is the losing defendant liable for that court fee, or can it successfully argue that it was unreasonably and/or unnecessarily incurred?

No or Yes, depending upon which court you are in.


Stoney v Allianz Insurance Plc Case No: E14LV817, Liverpool County Court 7 November 2019

the court said no, holding that the fee was unreasonably incurred as the claimant may have been entitled to fee remission, that is he would not have had to pay the fee.

The judge accepted that this meant that a necessarily incurred court fee, caused by the negligence of the insured, would be borne by the state and not the insurance company, but said that that was a matter for Parliament or the Rules Committee.


Cook v Malcolm Nicholls Limited Case No: B57YP191, Coventry County Court 11 April 2019

the court said yes:


“I take the view that the court fee is the court fee. That has got to be paid.”


The latest addition to case law, again at County Court level, is


Ivanoy v Lubble (Central London County Court 17th January 2020)


where the court said:


“…. I am satisfied that it is not unreasonable for the Claimant to pass on the hearing fee to the Defendant”.



It would be a very simple matter indeed for the Civil Procedure Rules to say either:


“A successful claimant shall recover any court fee paid, whether or not that party could have sought remission of that fee” 


“A defendant shall not be liable for a court fee incurred by a party who could have successfully claimed remission of that fee.”

Don’t hold your breath.


In Practice

In practice solicitors should always check to see if their client qualifies for court fee remission. This avoids the problem, and also assists with cash-flow if it is the practice of the firm to pay the fee.

It is also a useful lever for solicitors to get the fee out of the client upfront; if the client does not qualify for remission, then that is a powerful argument that the client could, and should, pay upfront.

It follows, as night follows day, that a solicitor who fails to advise a client about fee remission, and then fails to recover the fee from the other side in the event of a win, will have to fund the fee themselves, rather than the client taking the hit for the solicitor’s negligence.

It is also inadequate professional service.


New Personal Injury Small Claims Portal Goes Live

On 6 April 2020 the personal injury small claims limit will be increased from £1,000 to £5,000 for road traffic accident matters, and £2,000 for all other personal injury matters.

This means that the vast majority of the personal injury claims – probably about 90%, will now not involve recovery of costs from the defendant, virtually always an insurance company.

The website is here .

The new portal will allow litigants in person to access it and the small claims limit increase is the first part of the government’s radical proposals to overhaul the costs system generally.

No date has been announced for the introduction of fixed recoverable costs for all civil claims of £100,000 or less, but it is clear that the new government is indeed implementing the proposals, and April 2021 is the likeliest implementation date.

No date has been announced for the whiplash tariff.


Solicitors’ Liens

Ryanair Liens Case Goes to Supreme Court

Bott & Co Solicitors Ltd have been granted permission to appeal to the Supreme Court by the Supreme Court itself in relation to the issue of solicitors’ liens where a third party – Ryanair here – deliberately sends damages to the client, and not the solicitor acting for the client.

The Supreme Court will hear this matter on Tuesday 27 October 2020.

Very obviously that acts as a major disincentive to solicitors to take the risk of working on a no-win, no-fee basis where there will be no fund from which to take the costs.

It was thought that this issue had been put to bed by the Supreme Court itself in

Gavin Edmondson Solicitors Ltd v Haven Insurance Company Ltd [2018] UKSC 21     

where it held that Haven Insurance must pay to the solicitors the costs that were due to the solicitors from their own client in circumstances where the insurance company had paid damages direct to the solicitor’s client.

Any other decision would effectively render the Courts and Legal Services Act 1990, with its introduction of Conditional Fee Agreements, useless and remove the major current method of providing access to justice, following the removal of legal aid.

Here, in

Bott & Co Solicitors Ltd v Ryanair DAC [2019] EWCA Civ 143

the Court of Appeal, in a decision bizarre even by its own recent anti-access to justice stance –

(see Herbert v HH Law [2019] EWCA Civ 527 )

declined to follow the Supreme Court’s decision in Edmondson, technically distinguishing it on grounds that would cause a first day trainee at my firm to get a rollicking.

Had Ryanair’s conduct been that of a solicitor it would be in clear, repeated and serious breach of the Solicitors Code of Conduct specifically indicative behaviour 11.4 which provides that you must ensure that you do not communicate with another party when you are aware that the other party has retained a lawyer in a  matter, except:


(a) to request the name and address of the other party’s lawyer; or

(b) the other party’s lawyer consents to you communicating with the client; or

(c) where there are exceptional circumstances.


see my blog –



After the Unison decision, where again the Supreme Court had to overturn an anti-access to justice Court of Appeal decision, this is the most important access to justice matter to go to the Supreme Court in recent years.

I understand that the Law Society declined to intervene in relation to the Permission to Appeal stage.

It is to be hoped that the Law Society now takes a different view and intervenes in this matter of great importance to all solicitors – and most importantly their clients – whatever type of work is involved.

Here is my comment on the Court of Appeal decision in this case.


The Senior Judiciary need to think through rather more carefully the whole issue of access to justice and litigation and how it may be delivered.

At one level, lawyers are being encouraged to use portals and follow protocols and do everything to avoid litigation, and yet Bott & Co Solicitors Limited appear to be being punished for using such a scheme, and for making significant profits from it.

What on earth is the relevance to the legal principles of the fact that Bott’s income from claims against Ryanair was over £100,000 a month? (see Paragraph 16 of the judgment).

What is the relevance of the number of claims that Bott were handling, except to show the success of the scheme and the attraction to members of the public?

So, at one level, we are consistently urged to be efficient and be a business, with the provision of legal services opened up to every Tom Dick and Harry, but when a firm does exactly that they are punished by the courts by being refused a lien.

I can see no logical difference between the pre-action road traffic portal, where 99% of cases are settled, and the scheme operated by Bott & Co Solicitors Limited.

This decision should be overturned by the Supreme Court.


I deal with the decision of the High Court and the Supreme Court in my blogs –




Avoiding Waiving a Lien


Candey Ltd v Crumpler & Anor [2020] EWCA Civ 26 (23 January 2020)

the Court of Appeal has clarified what a solicitor must do when they enter into a new security arrangement with a client, the terms of which are inconsistent with the terms of their equitable lien, to minimise the risk of having waived their lien.

The appellant, acted as solicitors for a company incorporated in the British Virgin Islands in extensive litigation conducted in England and several other jurisdictions.

The company incorporated was now being wound up in insolvency proceedings in the British Virgin Islands court and the respondent liquidators were appointed by that court as the company incorporated’s liquidators.

In a dispute between the appellant and the respondent liquidators about the appellant’s claim to unpaid fees owed to it by the company incorporated, the respondent liquidators was ordered to pay some of the appellant’s legal costs, and the High Court determined two issues in relation to the costs order.

The court held that a success fee was not recoverable from the respondent liquidators and that the appellant had waived its equitable lien over settlement monies that had been paid to by the company incorporated,  during the litigation when it entered into a deed of charge with the company , which was inconsistent in some respects with its rights under the lien.

The Court of Appeal dismissed the appellant’s appeal on both issues, upholding the judge’s findings.

In so doing, it confirmed that waiver of a solicitor’s equitable lien will arise when a solicitor enters into a new security arrangement with the client, the terms of which are inconsistent with the equitable lien, unless both parties agree that the solicitor’s existing rights will be unaffected.

Such agreement will not be found unless the solicitor fully explains the position to the client.

To satisfy this requirement, the solicitor must explain the combined effect of the new security and the pre-existing lien on the prospects of the client recovering anything of value from success in the litigation in which the solicitor is instructed.

It will not be sufficient for the solicitor to advise only on the effect of the new security.

The judgment also clarifies that a foreign representative is not entitled to benefit from the exemption in article 4(c)(i) of Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No.5 and Saving Provision) Order (SI 2013/77) in the same way as English liquidators.


QOCS Continues to Apply in Court of Appeal


Wickes Building Supplies Ltd v Blair (No.2 : Costs) [2020] EWCA Civ 17

the Court of Appeal held that QOCS protection continues to apply to any appeal at any level which concerns the outcome of the claim for damages for personal injuries, or the procedure by which such claim is to be determined.

This is on the basis that these were all part of the “proceedings” under CPR 44.13 dealing with QOCS and this interpretation applied on a second appeal, as here and where the appeal was brought by the defendant to the original claim and where the court had declined to exercise its discretionary powers under CPR 52.19 to limit recoverable costs.

Thus, although here the court found that the first appeal by the claimant was unmeritorious and justified awarding the defendant the costs of their subsequent further appeal to the Court of Appeal, it would nevertheless not order those costs to be enforced, as QOCS continue to apply.



A correct and sensible decision for the very reasons set out by the Court of Appeal here:


“The purpose of the QOCS regime is to facilitate access to justice for those of limited means…if a claimant’s access to justice is dependent on the availability of the QOCS regime, that access will be significantly reduced if he is exposed to a risk as to the costs of any unsuccessful appeal which he may bring or any successful appeal a defendant may bring against him.”


Fixed Recoverable Costs

The Wickes case also held that fixed recoverable costs do not apply to appeal proceedings.

This aspect of the decision has significant potential ramifications for all civil work once the fixed recoverable costs scheme is extended to all civil claims of £100,000 or less, probably in 2021.

I am not sure that the Court of Appeal has thought this through.

Here, the QOCS system protected the losing claimant against open, unfixed costs as this was a personal injury claim.

However, QOCS does not apply outside the field of personal injury.

If costs are to be unfixed on appeal, then that causes the very access to justice problem identified here by the Court of Appeal in relation to QOCS.

The answer is to have a separate fixed costs regime for all appeals of all kinds, whatever the value, and whether or not covered by fixed costs at first instance.

I am grateful to Sarah Robson of counsel for sending me details of this case.


Part 36


King v City of London Corporation [2019] EWCA Civ 2266

the Court of Appeal held that a Part 36 offer that excludes interest is not a valid Part 36 offer.


Legal Services and The UK Economy

On 23 January 2020, the Law Society published its 2019 report:

Contribution of the UK legal services sector to the UK economy

and found that dispute resolution services generated 32% of the turnover of law firms in England and Wales.

The report shows that UK legal services are now worth over £60bn a year.


Lugano Convention

The 2007 Lugano Convention governs jurisdiction and the enforcement of judgments between members of the European Union and the non-EU countries of Norway, Iceland and Switzerland and due to the United Kingdom’s exit from the European Union will cease to apply to the UK at the end of the transition period on 31 December 2020.

Norway and Iceland have said that if matters cannot be resolved with the European Union then they will withdraw from the Lugano Convention as they regard their relationship with the United Kingdom is more important than their relationship with the 26 countries of the European Union.

Written by kerryunderwood

February 5, 2020 at 9:36 am

Posted in Uncategorized

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