Court of Appeal does it again

In KU v Liverpool City Council [2005] EWCA Civ 475 the Court of Appeal held that a court did not have the power to award a success fee at different levels for different periods in the claim where the Conditional Fee Agreement (CFA) in question only allowed for one success fee throughout. It is therefore not open to paying parties to seek to reduce success fees for the period in proceedings, for example, after liability has been admitted. The Court of Appeal confirmed that this approach was correct, and that it applied equally to the success fee that was to be allowed in detailed assessment proceedings, in Crane v Canons Leisure Centre [2007] EWCA Civ 1352 – ie it was to be the same success fee as was to be allowed in the main proceedings.

So what exactly was a differently constituted Court of Appeal trying to say in Birmingham City Council v Lee [2008] EWCA Civ 891? They commented, without any reference to these previous decisions:

“It does not follow, as it seems to us on first impression at least, that the same level of success fee appropriate to litigation is necessarily appropriate to the making of the protocol claim. It might be, but that will depend on the realities of the position, and the risk undertaken, as at the time of advancing the claim.”

Can it now be argued that a different success fee can be applied to the pre-proceedings stage? It is this kind of ill considered judgment that itself generates so much costs litigation, but the courts continually blame defendant lawyers and insurers, rather than themselves, for these problems.