Success fee – it is not necessary to undertake a risk assessment and/or charge success fee in line with prospects of success, but the solicitor must explain the calculation of success fee

Herbert v HH Law Limited [2019] EWCA Civ 527

The CFA contained a 100% success fee capped at 25% of damages. Post-settlement Ms Herbert challenged the CFA on the basis that the solicitor had not conducted a risk assessment. The Court of Appeal considered whether it is necessary to undertake a risk assessment and charge a success fee in line with the prospects of success.

The Court of Appeal found that, as a success fee is traditionally calculated by reference to risk, if a solicitor charges a success fee on a different basis, the solicitor must (1) explain why the success fee is calculated in that (different) way and (2) be clear that risk plays no part in the calculation. (3) The solicitor must tell the client that the success fee is irrecoverable from the opponent and must be paid by the client. If a client has been told these things it will amount to informed consent.

An interim bill can be a statute bill even though it only includes profit costs or disbursements, and not both

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