Kilby v Gawith
1 January 2009
[2009] 1 WLR 853
Citation: [2008] EWCA Civ 812; [2009] 1 WLR 853
Facts:
A low value RTA case was settled without proceedings being issued. The claimant had the benefit of BTE insurance but did not use it, signing up for a CFA instead. The claimant's claim for a 12.5% success fee under r.45.11 was allowed by the district judge who ruled that he had no discretion to disallow it. An appeal to the circuit judge failed and the defendant obtained permission for a second appeal to the Court of Appeal. The defendant accepted that if a success fee was payable, the amount was fixed by Part 45, but argued that the language of the rules was flexible enough to enable the court to disallow a success fee in principle if to allow it would be to allow the recovery of a cost unreasonably incurred. Sarwar v Alam [2002] 1 WLR 125 was authority that in cases such as this it was generally unreasonable to incur additional liabilities where BTE was available.
Held:
(1) The judge was correct in his finding that on its true construction the language of Part 45 Section II meant that there was no discretion to disallow the success fee where a CFA had been entered into.
(2) The approach of the Court in Lamont v Burton [2007] 1 WLR 2814, whilst not on the same rule, would be followed.
(3) The Court recognised the impact of BTE in this situation but was not persuaded that it should lead to a different construction of the rule.
(4) The appeal would be dismissed.
Jeremy Morgan QC acted for the Defendant.