The High Court has prevented a claimant firm charging 100% success fees on CFAs for hundreds of cases issued together.
The Honourable Mr Justice Turner said national firm Leigh Day had to abide by the success fees set out covering different scenarios in the conditional fee agreements.
The firm had brought 609 cases against the Ministry of Defence on behalf of Iraqi civilians alleging they were victims of maltreatment.
Although no formal group litigation order was made, lead cases were selected and the remainder stayed pending their determination. Lead cases were split into three schedules: under the first two schedules the civilians were largely successful at trial, while the third schedule were adjourned and have largely been resolved without service of particulars of claims. As noted by Mr Justice Leggatt (as he was then), the issues of cost were of ‘very great legal and factual complexity’. The claims were issued in March 2013, days before LASPO abolished the recovery of success fee from unsuccessful defendants.
The dispute arose because of a clause in the CFAs which set three levels of success fee: 33% if the case resolved without needing to serve particulars of claim, 67% if the case concluded between service of the particulars and service of the defence, and 100% if the case concluded after service of the defence.
Leigh Day argued that references to ‘the case’ should be interpreted as referring generically to any lead case of cases. As a consequence, a 100% success fee could be claimed for all non-lead cases in which no individual particulars of claim had been served.
The firm made the distinction between a CFA referring to ‘the case’ – as it was here – and ‘your claim’.
The MoD contended that the clause limited the 100% uplift to cases in which individual defences had been served, with a 33% ceiling on all others.
Turner J said each individual CFA was capable of having full contractual effect and ran to 14 pages. He said parties who regretted the terms of an agreement could not ‘impose retrospectively an unorthodox interpretation of its terms to make good any perceived economic deficit’.
The judge added: ‘It would have been simplicity itself to have drafted the agreements to provide for that which Leigh Day now seek to achieve.’
He rejected the firm’s interpretation and concluded each CFA was subject to the limits according to the pleading stages.