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Herbert -v- HH Law Limited - A very important decision on a client's ability to challenge both success fees and ATE premiums
If a payment by a solicitor is properly to be classified as a solicitor's disbursement, it should be contained in his bill of costs and thus be amenable to the s.70 process of solicitor-client assessment. The effect of allowing the solicitor to include the item [ATE premium] in the cash account would be to deprive the client of the opportunity to challenge the item on a solicitor-client assessment.
HHJ Soole, judgment paragraph 83
When the costs judge is faced with the client's application under 46.9(4) for a reduction of the percentage increase, I can see no good reason for the risk in the individual case to be excluded as a relevant factor. On the contrary it is likely to be the primary factor.
HHJ Soole, judgment paragraph 44
Our Mark Carlisle acted as agent in this case at first instance.
The decision, which has now been upheld on appeal by the High Court in a decision handed down today, allows clients to challenge the level of success fee charged and puts the onus on the solicitor to show that the level of success fee was reasonable and linked to the risk involved in the case. This is a major victory for clients, who are habitually charged success fees of 100% regardless of the circumstances of the case.
The decision also confirms that the cost of an ATE premium is a solicitors' disbursement (being part of the overall funding package) and must be included in the bill rather than the "cash account". The consequence of that is that such premiums, which are often unnecessary in the circumstances of the case and / or overly expensive, can now also be challenged on assessment.
If you have had a success fee and / or ATE premium deducted from your compensation from a personal injury claim call us on 0800 689 5183 or click this link to start your claim
