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Jackson’s Children: Recoverability of Success Fees in Child Claimant Cases - Jake Rowley, Farrar’s Building

07/12/16. With the implementation of the Jackson Reforms came a complete overhaul of the status and recoverability of success fees and ATE premiums. Gone were the days of presenting a bill at the Defendant’s door for payment and instead, in its place was transplanted a new regime pursuant to which solicitors acting for claimants were to look to their own clients for repayment of those sums. Child claimant’s, for whom special protective provisions exist in CPR Part 21, were no exception.

One problem, seemingly overlooked at the time of ushering in the new dawn of Jackson, was that the Civil Procedure Rules framework which existed at that time in relation to child claimants was unfit for purpose as regards providing a coherent system not only (i) to allow litigation friends, who had entered into Conditional Fee Agreements with success fees on behalf of the child claimant, to apply to have those sums satisfied out of the child’s damages, but also unfit (ii) to provide Judges at first instance with a clear and unambiguous power to entertain such requests and the approach that should be adopted to consider the same.

Much needed amendment came by way of the 78th and 79th Updates to the Rules, which came into force on the 6th April 2015.

The Old Regime

Under the ‘old regime’, pursuant to CPR r. 46.4, the “general rule” was that where sums were to be paid from a child’s money the Court had to order a detailed assessment of those sums unless the matter could be brought within one of the exceptions contained in PD46, paragraph 2.1, namely that there, “is no need to do so to protect the interest of the child…” (para 2.1(a)) or “where another party has agreed to pay a specified sum in respect of the cost of the child […] and the legal representative acting for the child or protected party has waived the right to claim further costs” (para 2.1(b)).

The very clear statement in the rules and practice direction that a detailed assessment was required save in those limited circumstances set out above meant that many Judges understandably felt constrained, and unable to acceded to a request to make any payment out to satisfy a success fee at an infant approval hearing on a summary basis. It is difficult not to have sympathy with that approach; after all, the Court’s duty is to protect the child’s interests.

The Necessary Amendments

The changes that came into force on the 6th April 2015 were of critical importance for anyone acting on behalf of a child claimant and who had...

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