Background

On 9^th February 2019, the claimant who was 11 years old at the time, was in the Defendant’s store when he was injured.  He instructed solicitors through a Litigation Friend and a conditional fee agreement was entered into which provided for a deduction from damages if the action was successful.  Those deductions included the payment of an ATE policy at a cost of £336.00.

The Issues

The matter subsequently settled for £1,750.00 but at the Infant Approval Hearing the Deputy District Judge refused to approve an order that the £336.00 ATE premium be deducted from the claimant’s damages.

Held

The claimant was successful in an appeal to the District Judge and the decision overturned on 21^st April 2022.

In terms of the application of the law Mr Hughes, for the claimant referred to CPR 46.9, and commented that issues of proportionality were not applicable as the assessment was on an indemnity basis.  Further, there was a presumption that the costs had been reasonably incurred and were reasonable in amount as they were incurred with the agreement of the client.  Importantly, he referred to a witness statement from the Litigation Friend which confirmed that the costs were incurred with her knowledge and approval.  He also made reference that based on Herbert v HH Law Limited [2019] – see our case law list, ATE premiums are not capable of being challenged under the provision of 46.9 and that it was not open to a District Judge to disallow an ATE premium which meets the requirements of Part 46.9.

HHJ Lethem agreed with Mr Hughes’s submissions and found that the Deputy District Judge had failed to properly apply CPR Part 21.12 (recovery of a Litigation Friend’s costs) and allowed the appeal ordering that the Litigation Friend was entitled to have £336.00 deducted from the claimant’s damages.

Comments

This is a favourable result for all those involved in claims which involve minors and although a County Court decision, this is a clear acknowledgement that a financial risk exists for a Litigation Friend when pursuing these types of claim.

A copy of the judgement is available here:  https://www.civillitigationbrief.com/wp-content/uploads/2022/05/Transcript-xxx-insurance-costs-1.doc

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