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Abrew v Tesco Stores Limited, Supreme Court Costs Office, 16 May 2003

17 June 2003
The issues

Costs – success fee – ATE Premium – after the event premium – proportionality.

The facts

The Claimant was a lady in her mid 60s who slipped in her local Tesco on dried spaghetti, injuring her shoulder, hip and ankle. The accident occurred on 26th August 2000. On the 6th September 2000 she contacted Solicitors and entered into a CFA. She also took out an insurance policy with Temple of £790.00 plus £39.50 for cover of £100,000.00. The CFA had a success fee of 100%. Thereafter, Claimant’s Solicitors entered into correspondence with the Defendants, who told the Claimant’s Solicitors 12 days outside the Protocol period that liability would not be in issue. Thereafter, a settlement was negotiated in the sum of £3,500.00. Part 8 Proceedings were issued in respect of costs. The Claimant’s Bill was £8,882.00. That matter went to a Costs Officer, who allowed £4,862.47. The Defendant appealed on 3 matters:-

– the level of the insurance premium
– the success fee
– proportionality in respect of the costs of the Detailed Assessment.

The decision

The Insurance Premium

(a) The risk here was not very great but it was sufficiently high to justify a slightly higher premium than the standard policy of £250.00 or £350.00 that was the figure that had appeared in cases that have subsequently found their way into the law reports.

(b) The Claimant’s Solicitor took out too much cover.

(c) The appropriate figure for the premium was £400.00 and the Defendant’s appeal on this head would be allowed.

2. The Success Fee

In every case a success fee had to be looked at on its own facts. The Master had not been helped by a risk assessment that was described by the Master as “quite short”. Although the Costs Officer had concluded that a success fee in the region of 30% to 50% was reasonable in a case of this type, the Master believed that the appropriate success fee was 50% given the state of knowledge and its uncertainty of the outcome of case that the Claimant’s Solicitor was faced with at the time that the CFA was entered into. Defendant’s appeal on this head dismissed.

3. Costs of the Detailed Assessment

The Defendant complained about the sums allowed in respect of the costs of the Detailed Assessment. The Defendants had failed, in the words of Lord Justice Latham in Bernstein -v- Times Newspapers condemning those who sought to make a cottage industry out of satellite litigation. The Defendants had attacked the bill on almost every point and the Master concluded that much of the additional costs, which on the face of it seemed to be disproportionate were caused by the approach of the Defendants to this Assessment. Appeal on that head dismissed.

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