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	English and Welsh Courts - Miscellaneous
You are here: BAILII >> Databases >> English and Welsh Courts - Miscellaneous >> SJ v DGJ Tanner t/a Sopley Farm [2025] EWCC 17 (23 April 2025) URL: https://www.bailii.org/ew/cases/Misc/2025/CC17.html Cite as: [2025] EWCC 17

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IN THE COUNTY COURT
SITTING AT OXFORD

		Oxford Combined Court Centre St Aldate's Oxford
		23/04/2025

This judgment was handed down remotely at 2.15 pm on 23 April 2025 by circulation to the Claimant's solicitors by e-mail. ............................. DISTRICT JUDGE LUMB

District Judge Lumb :

1. On 29 August 2021 SJ, then aged almost 3 was involved in an accident at the Defendant's premises as a result of which he sustained a nasty laceration to his right upper lip. Full details of his injury are set out in a medico-legal report from a plastic surgeon, Mr Timothy Burge FRCS, dated 5 October 2022.
2. His mother Mrs AJ instructed solicitors and the claim for damages for personal injuries was settled between the parties, subject to the approval of the Court, for the sum of £3,600.20.
3. The matter was listed for an infant approval hearing before me on 12 November 2024. I approved the proposed damages figure of £3600.20.
4. The amount of the between the parties costs was agreed save for the fee for the medical report of Mr Burge. The Defendant did not attend the hearing nor was he represented. Instead, his solicitors wrote to the Court offering the sum of £760 as against that claimed of £1548 in respect of the medical report fee. In my judgment, fees for reports from plastic surgeons tend to be more expensive than some other disciplines such as orthopaedics and I did not consider that the figure of £1548 fell outside the range of reasonable fees. The Defendant was therefore liable for the fee as claimed.
5. Applications were then made at the hearing by Mr Henry Atkinson, the solicitor's clerk appearing for the Claimant, for deductions from SJ's damages of £900.05 in respect of the success fee payable under the Conditional Fee Agreement signed by SJ's mother as his Litigation Friend and for £336 for an After The Event Insurance (ATE) premium.
6. At the hearing, I accepted that there were some risks in the case which would justify a success fee of 20%, as opposed to 100% stated in the CFA, assessed against the base costs reasonably incurred and reasonable in amount.
7. Within the infant approval hearing bundle was a witness statement from the Litigation Friend dated the 1 November 2024 prepared for her by her solicitors. The statement confirmed that SJ had recovered from his injury but had been left with a small scar on the inside of his top lip. The statement then went on to deal with the question of costs and expenses and the deduction of the success fee and ATE premium as expenses incurred by her as litigation friend.
8. Of some concern to the Court was the contents of paragraph 14 of that statement "I confirmed verbally over the phone with their representative, Vishaal Anand, that I was aware that on conclusion of the case, Express Solicitors would deduct 25% and the cost of the After The Event legal expenses insurance policy premium from SJ's awarded damages."
9. The concern is that how did the solicitors know at the time of instruction that the success fee would be 25% of SJ's damages? The correct measure of any success fee would be the appropriate percentage of the profit costs capped at 25% of the damages. At that stage, Vishaal Anand could not have known whether or not the 25% cap would be reached. To express the success fee as automatically 25% of the damages would be an unlawful contingency fee.
10. Of further concern was the amount of the solicitor and own client costs incurred said to be £29,641.80 contained within a statement of costs signed by the partner solicitor with conduct of the case, Jennifer Lutton. This included in all the equivalent of 89.6 hours work purportedly done by 14 different fee earners all at hourly rates which were very significantly higher than the SCCO guideline hourly rates for Manchester.
11. The level of work said to have been done was all the more striking given that the profit costs recoverable from the Defendant would be limited to the fixed recoverable costs of £1,860. As the CFA would limit the amount of costs to be paid by the Litigation Friend to 25% of the damages (£900.05) and the ATE premium of £336 it would appear that the solicitors were prepared to undertake tens of thousands of pounds worth of work for which they were not going to be paid. Any objective observer would consider that to be a very odd way for solicitors to conduct business. It automatically raises a suspicion that the costs purported to have been incurred were artificially inflated to ensure that the 25% cap was always reached. That suspicion is fortified by the representation made by Vishaal Anand at the time of taking the initial instructions from the client that 25% of the damages would be deducted. The justification, if it is one at all, may be that under the terms of the CFA if the client ceased to instruct the solicitors before the conclusion of the case, then she would have been liable for the basic costs incurred to date. Given the huge level of costs said to have been incurred this would have operated as a powerful incentive to the client to see the case through to the end with Express Solicitors and effectively trapped her into doing so. In that event, that process might have attracted the attention of the Solicitors Regulatory Authority and any solicitor operating such terms of business may be wise to exercise caution in doing so.
12. As the Court has to be satisfied that the solicitor and own client costs have been reasonably incurred and are reasonable in amount as the first stage in calculating the appropriate success fee deduction, and the contents of the witness statement of the Litigation Friend drafted by the solicitors seemingly indicating that this was potentially an unlawful contingency fee arrangement, I directed a detailed assessment to be carried out by me on the papers and required the solicitors to lodge their full file of papers with the Court.
13. The full file of papers was duly lodged as directed and I have read these. The file reveals a considerable amount of duplication of work both by individual and other fee earners. There is also a considerable amount of non-progressive work undertaken that could properly be characterised as "costs padding". That said, even on a broadbrush approach I am satisfied that the amount of work reasonably incurred and reasonable in amount would inevitably have exceeded £5000 of profit costs. It is not therefore necessary, in this particular case, to complete a full detailed assessment and certify what would have been the appropriate base costs figure on the indemnity basis. Whatever that figure may have been 20% of it would be in excess of the 25% cap. The full £900.05 success fee is therefore deductible.
14. Insofar as the ATE premium is concerned, I am satisfied that this is also deductible. It was a reasonable expense to incur £336 to insure against the risk of having to pay out disbursements of £1620.