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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Gloucestershire County Council v Evans & Ors  EWCA Civ 21 (31 January 2008)
Cite as:  1 WLR 1883,  WLR 1883,  EWCA Civ 21,  2 Costs LR 308
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE SUPREME COURT COSTS OFFICE
Deputy Costs Judge Lightman
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE DYSON
LORD JUSTICE LLOYD
MASTER O'HARE sitting as an assessor
| Gloucestershire County Council
|- and -
|Evans & Ors
Nicholas Bacon (instructed by Messrs Tayntons LLP) for the Defendants/Appellants
Hearing date: Wednesday 16 January 2008
Crown Copyright ©
Lord Justice Dyson :
"(1) A conditional fee agreement which satisfies all of the conditions applicable to it by virtue of this section shall not be unenforceable by reason only of its being a conditional fee agreement; but (subject to subsection (5)) any other conditional fee agreement shall be unenforceable.
(2) For the purposes of this section and section 58A-
(a) a conditional fee agreement is an agreement with a person providing advocacy or litigation services which provides for his fees and expenses, or any part of them, to be payable only in specified circumstances; and
(b) a conditional fee agreement provides for a success fee if it provides for the amount of any fees to which it applies to be increased, in specified circumstances, above the amount which would be payable if it were not payable only in specified circumstances.
(4) The following further conditions are applicable to a conditional fee agreement which provides for a success fee-
(a) it must relate to proceedings of a description specified by order made by the Lord Chancellor;
(b) it must state the percentage by which the amount of the fees which would be payable if it were not a conditional fee agreement is to be increased; and
(c) that percentage must not exceed the percentage specified in relation to the description of proceedings to which the agreement relates by order made by the Lord Chancellor."
The defendants' submissions in more detail
"The logic of the success fee is that its size will reflect the risk the lawyer is incurring in taking on the case. The more difficult the case and the less clear that the outcome will be a successful one, the higher the percentage uplift that can be justified; and, of course, vice versa".
Lord Justice Lloyd:
"the amount by which the amount of the fees payable only in specified circumstances is to be increased".
That is not the statutory text and, especially given the contrast with the text of section 58(2)(b) which could easily have been followed if thought appropriate, the section cannot be read as if it were in those different terms.
Lord Justice Buxton: