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The Claimant had brought proceedings on behalf of the estate of John Frederick Oliver, who had died of septicaemia in a hospital run by the primary care trust. He had previously been in a hospital run by the NHS trust, where it was thought that he had acquired MRSA. The deceased's widow had contacted solicitors, who had substantial practice in clinical negligence. She informed them of what had happened to the deceased over the last three months of his life. Her claim was accepted under a Conditional Fee Agreement. The claim ultimately settled and the Claimant was awarded costs, to be assessed on the standard basis.
At detailed assessment Master Campbell reduced the success fee claimed at 100%, representing a notional 50% prospect of success in the action, to 67%. The fee agreement noted that the Claimant's solicitors had not yet had the opportunity to assess the credibility of the evidence or assess the relevant facts or expert witnesses. The Claimant's solicitors contended that given the limited information they had about the claim the prospects of success were uncertain and that it was impossible to assess the percentage chance of success with any mathematical precision. Master Campbell formed the view that the Claimant's solicitors must have thought that there was a more than 50% chance of success otherwise they would not have accepted the claim. On that basis he reduced the success fee to 67% representing a 60% chance of success.
On appeal Mr Justice Jack found.....
The crucial question on the appeal is whether on the material which was before the master he was justified in concluding that the prospects of success should have been assessed at 60% rather than 50%, when Gadsby Wicks first decided to accept the claim. The basis of his decision was the firm must have thought that the claim had a better than 50% chance, otherwise it would not have been accepted. In my view, shared by my assessors, that basis was not substantiated. The assessment was that the claim might have a better or worse than even chance of success. Having been addressed as to the merits of the claim by Mr Hutton and also read his note written for the assessment, I agree that the claim was of a kind that faced difficulties and had uncertain prospects. Based on what Gadsby Wicks knew when the conditional fee agreement was made it was one which could easily have been assessed as having chances of success lower than 50%. I therefore consider that the master was wrong to take the view he did...
In his decision Master Campbell cited from the judgment of His Honour Judge Dean QC in Barham v Athreya , Central London County Court, 15 June 2007, unreported, quoting from paragraph 57 :
'In other words, if you chose to enter a CFA at such an early stage, you are, as it were, giving yourself the right to argue for or to bargain for 100% and that cannot be right. It puts a premium on ignorance rather than the contrary.'
This may suggest that a solicitor should not enter an agreement at an early stage. However, as I have said, he is entitled to do so. It follows inevitably from that entitlement that he will be in a position of ignorance compared with that when he has the medical records and expert advice. But he is likely to be experienced in the field and he will have some knowledge of the claim. His 'ignorance' is relative. He may have taken on a winner: he does not know. But equally he may have taken on a case where greater knowledge would show the chances were well below 50 percent. The master considered that he was bound by the decision in Barham v Athreya , but he was not."
The appeal was allowed and the success fee restored to 100%