An appeal in the case of Fortune v Roe [2011] All ER (D) 91 against a reduction in the success fee was dismissed at the High Court. The Claimant sustained massive injuries in December 2001, including fractures to the spine, following a head on collision in an RTA.

The claim was initially funded by BTE insurance but, when the limit of the indemnity was reached, the Claimant entered into a CFA dated the 3rd February 2006. Liability had previously been admitted in March 2003.

A costs judge had previously held that the Claimant had “won” her case prior to entering into the CFA and the success fee should therefore be limited to 20% instead of the 100% claimed. Liability had already been admitted but quantum had not been agreed. The Claimant accepted a Part 36 offer in the sum of £600,000 18 days before trial.

The appeal judge held that it was wrong that the case was ‘won’ when liability had been admitted, and it was actually only when the Claimant had accepted the Part 36 offer, however there had been no risk to the Claimant’s costs until the Part 36 offer was made. The only risk was if the Part 36 offer was made, rejected and not beaten but the majority of the costs would still be recoverable up until the offer had expired. The court agreed with the costs judge that a reasonable success fee was 20%.

From this judgment it follows that a win only transpires following the acceptance of an offer. It is not when a Claimant is entitled to recover damages following an admission of liability – the amount of damages has to be determined and then agreed between the Claimant and the Defendant.