To win or not to win? That is the question. An appeal in the case of Fortune v Roe  All ER (D) 91 against a reduction in the success fee was dismissed at the High Court. This was a case where, in December 2001, the Claimant had been involved in a serious road traffic accident resulting in multiple fractures including to the spine. Her claim was initially funded by BTE insurance but, when the limit of the indemnity was reached, she entered into a CFA on 3rd February 2006, liability having been admitted in March 2003.
A costs judge had previously held that the Claimant had “won” her case prior to entering into the CFA and the success fee should therefore be 20% instead of the 100% claimed. Liability had already been admitted but damages had not been agreed. The Claimant accepted a Part 36 offer in the sum of £600,000 18 days before trial.
It was held that the Claimant had only won her case after the acceptance of the offer, however there had been no risk to the Claimant’s costs until the Part 36 offer was made by the Costs lawyer. The only risk was if the Part 36 offer was made, rejected and not beaten but the majority of the costs would still be recoverable up until the offer had expired. The court agreed with the costs judge that a reasonable success fee was 20%.
It follows, therefore, that a win only occurs following acceptance of an offer. It is not sufficient that a Claimant is entitled to recover damages following an admission of liability – the amount of damages has to be specified and accepted. Costs lawyer Fortune v Roe