Supreme Court Costs Office
Master Campbell
Date: 06/04/04

The Issues: This dental negligence claim was settled without the issue of Court Proceedings, but the Defendants argued that the Claimant was not entitled to recover a success fee on the basis that they had not been given information regarding funding. Could the Claimant recover any of the success fee given the failure to notify the Defendant about the existence of a CFA; if not, could he obtain relief from the sanction imposed by CPR 44.15?

Held: The Pre Action Protocol for the Resolution of Clinical Disputes applied to this case. That Clinical Disputes Protocol was in turn governed by the Practice Direction in relation to Protocols (“PDP”) which at Paragraph 4 provided:

“A.1 Where a person enters into a funding arrangement within the meaning of rule 43.2(1)(k) he should (emphasis added) inform other potential parties to the claim that he has done so.”

Under section 19.2(5) CPD there is no requirement for any funding information to be provided before the commencement of proceedings. The effect of this, therefore, is that once proceedings are started there is an absolute requirement for the Claimant to provide funding information if he is to recover a success fee, but there is no such requirement before the issuing of proceedings (Para.45).

The Defendants had argued that the PDP required the Claimant in a clinical negligence case to notify a Defendant when a CFA was entered into. But, the Court disagreed, construing the word ‘should’, within the PDP, to mean ‘ought to’ and not ‘has to’ or ‘must’ (Para 49.). The requirement to provide funding information, pre action, is optional and not compulsory and therefore the Claimant could recover a success fee.

Comment: Although this was a clinical negligence matter the Personal Injury Pre Action Protocol is worded in similar terms. Para 3.2 of that Protocol states:

“...Where the case is funded by a conditional fee agreement (or collective conditional fee agreement), notification should (emphasis added) be given of the existence of the agreement and where appropriate, that there is a success fee and/or insurance premium, although not the level of the success fee or premium.”

Therefore the above decision is applicable to personal claims generally, and there is no requirement to provide funding information before proceedings are issued. However, it is recommended and may be best practice to do so.

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