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Sawar v Alam costs Judge Rogers

25 March 2003
The issues

Insurance premium – success fee.

The facts

Judgment in Sawar was given by the Court of Appeal on the 19th September 2001 and the substantive issues related to the obligation on the part of a Claimant to instigate alternative methods of funding. The Claimant was successful in her Appeal and the Claimant’s costs fell to be assessed. A success fee of 100% was sought and a premium of £62,500.00 claimed in respect of the insurance premium for the CFA in relation to the Court of Appeal Hearing.

The decision

1. The Premium – cover provided under the Policy was £125,000.00. The paying party/Defendant had argued that the premium of £62,500.00 was excessive. Correspondence had been put before the Court showing the difficulty of obtaining suitable cover. It was unlikely that the Claimant’s advisors could have obtained an alternative quotation at a lower rate. On this basis, the full amount of the premium was recoverable.

2. Success Fee – reference was made for a decision of Master Hurst, sitting as a Judicial Taxing Officer in the House of Lords in Designer Guild Limited -v- Russell Williams. In that case Master Hurst noted that the chances of success were 50% and that it was therefore appropriate that the success fee in such a case should be 100%. “The thinking behind this is that if a Solicitor were to take two identical cases with a 50% change of success in each, it is likely that one would be lost and the other won”. In Williams, Master Hurst noted that in any case reaching Trial a success fee of £100% was arguably justifiable on the basis that each side presumably believed it had an arguable and winnable case, and that here where the matter was undoubtedly finely balanced, the appropriate success fee was 100%

This also was a finely balanced case and the Solicitors were assuming a substantial risk in entering into a CFA. The success fee of 100% was justified.

Comments

Hard cases make bad law. The decision in this case is perhaps not surprising, bearing in mind its high profile and the significance of the issues. The reasoning in its generality is perhaps a little more alarming in its consequences for Defendants.

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