Kilby v Gawith 2008 EWCA Civ 812

Even if the client has BTE a 12.5% Success Fee is recoverable. The appellant (G) appealed against a costs decision made in favour of the respondent (K). G and K had been involved in a road traffic accident. G admitted liability and K, who had the benefit of before-the-event insurance, entered into a CFA with her solicitor. Quantum was agreed and G agreed to pay costs but disputed the success fee fixed at 12.5% of the fixed recoverable costs by virtue of rule 45.11(2) of the Civil Procedure Rules. K issued costs proceedings and G contended that the court had a discretion whether or not to allow a success fee and at what level. The costs judge ruled that rule 45.11(2) was not discretionary.

A district judge dismissed G's appeal. The Court of Appeal held that the costs judge and district judge had reached the correct conclusion. Rule 45.11 had to be construed by reference to its ordinary natural meaning in the context of the rules as a whole. While rule 45.11(1) provided that a claimant 'may recover a success fee' the natural meaning was that a claimant was entitled to claim a success fee. Rule 45.11(2) provided that the amount of the success fee 'shall be' 12.5%, which meant that where a success fee was recovered it had to be 12.5%. If the draftsman had meant for there to be a discretion to grant a success fee he would not have fettered that discretion by specifying the amount. The purpose of the rules was to provide fixed levels of remuneration, Nizami v Butt [2006] EWHC 159 QB, (2006) 1 WLR 3307 and Lamont v Burton [2007] EWCA Civ 429, (2007) 1 WLR 2814 applied. The approach to before-the-event insurance in Sarwar v Alam [2001] EWCA Civ 1401, (2002) 1 WLR 125 did not lead to the conclusion that rule 45.11(2) should be construed any differently, Sarwar applied.

Wilkinson v Fitzgerald and Churchill Insurance Co Ltd

A landmark victory has been handed down by The Honourable Mr Justice Blair. He found in favour of injured claimants who in the past have been effectively denied compensation by their own insurance companies, on the basis that the injured claimant gave permission to a negligent driver to drive the vehicle when the driver was not insured to do so.

Milton v Schlegel

In this decision, the defendants had made a part 36 offer which was accepted by the claimant. The defendant then sought permission to withdraw the offer, on the basis that the offer contained a typographical offer and, instead of being £4,200, should have offered £1,200. The court refused to allow the offer to be withdrawn.