Bradley Spicer (A Child Proceeding by His Mother and Litigation Friend Jessica Lewington) v Greene King Brewing and Retailing Limited

This judgment concerns the issue of deduction of additional liabilities, namely Conditional Fee Agreement (“CFA”) success fees and After The Event insurance (ATE”) premiums, in personal injury claims brought on behalf of children.

It would appear that from time to time, and perhaps with surprising regularity, both practitioners and members of the judiciary have not applied the correct tests in dealing with these issues.

So far as ATE premiums are concerned these are either to be allowed in full or disallowed unless judges have before them evidence from actuaries or insurance underwriters as to appropriate levels of premiums. This expert evidence is seldom, if ever, produced. The issue of whether or not to allow the deduction of any ATE premium from a child's damages will depend upon whether that was an expense which was reasonably incurred.

The issue of calculation of the appropriate success fee requires consideration of the appropriate level of profit costs charged by the solicitors and whether these have been reasonably incurred and whether they are reasonable in amount. That figure is then multiplied by the appropriate percentage success fee based on the risk of losing the case. In order to assess the appropriate percentage, the Court has to consider any risk assessment undertaken by the solicitors and whether that was reasonable given the state of knowledge about the case at the time the assessment was carried out. The resultant figure of this calculation is then compared with 25% of the recovered damages for pain and suffering and loss of amenity and any past special damage loss and if it exceeds 25% of the damages the success fee is then capped at that figure. If the calculated figure is less than 25% of the damages to be awarded, then that lower figure represents the success fee.

Where practitioners often appear to have fallen into error is to assume that the success fee will always amount to 25% of the damages. If that was the case it would risk being a contingency fee which is unlawful and irrecoverable. Another common error is to fail to produce details of the solicitor and own client base costs. This then precludes the court from calculating an appropriate success fee as the first half of the required equation is missing. As a result, no success fee is deducted from the damages.

It is reported that a common error made by judges in assessing the appropriate success fee percentage is to express this as a percentage of the damages, see for example the appeal decision of HHJ Monty KC in Duffield v WM Morrison Supermarkets Ltd [2025] EXCC 35, rather than the correct approach of assessing the risk of losing the case.

Many solicitors acting for children in personal injury cases these days have abandoned seeking to claim the deduction of success fees under CFAs. Some do still seek a deduction and there has been a disturbing trend amongst some solicitors to sign clients up to hourly rates which are significantly higher than the guideline hourly rates provided by the SCCO and claim to have recorded time far in excess of what could be objectively considered to be reasonably incurred and reasonable in amount. This results in the base profit costs figure, which is the multiplicand element of the success fee calculation, being significantly higher than is reasonable. This inevitably draws suspicion that this practise is deliberately designed to ensure that no matter what percentage success fee the court may assess as being reasonable (often significantly less than the permissible maximum of 100%) the 25% cap on deduction from the damages will always be reached. Clients will seldom, if ever, complain as they have been conditioned by the solicitors to anticipate that the deduction will be 25% of the damages and they are therefore none the wiser to realise that the solicitors may have been acting in their own interests and contrary to those of the client in potential breach of one or more of the Principles of the Solicitors Code of Conduct. The duty of the Court, however, is to protect the position of the child to ensure that any proposed award of damages is appropriate and that any expenses including costs incurred by the Litigation Friend which may be deductible from the damages are reasonable.

On 4 August 2022 Bradley, then aged 4, was visiting The Rowing Machine public house in Witney, Oxfordshire with his family. The pub is owned by the Defendants. While playing in the pub garden with his elder sister, Bradley tripped on uneven paving slabs and suffered a nasty gash to his forehead. He was taken by his parents to the nearby Witney Community Hospital where the wound was closed by steristrips and he was then discharged. His wound fully healed within 2 months, and he was left with a faint scar below his hairline which was visible on close inspection.

At the infant approval hearing before me on 15 August 2024, Bradley’s mother, Jessica Lewington told me that the pub manager admitted liability for the accident straight away and offered her some vouchers to spend on a meal at the pub on a future occasion by way of compensation. He entered the details in the accident book. Ms Lewington thought that vouchers were insufficient compensation for the injury and emailed the Defendants, Greene King who in turned passed her email on to their Claims Handling Agents, Gallagher Bassett. They advised her that they would deal with the claim but that as Bradley was a child, any award of damages would have to be approved by the Court and asked her to instruct solicitors to get a medical report to forward to them so that they could settle the claim. Following a recommendation from a local solicitor, Ms Lewington instructed Express Solicitors who are based in Manchester in June 2023.

Given the history of the claim this was always a very straightforward Occupiers Liability personal injury claim that could be settled promptly once the appropriate medical evidence was obtained. Special damages were a minimal £31.66 for travelling and unparticularised miscellaneous expenses. Ms Lewington had taken photographs of the uneven paving slabs in the pub garden. Liability was never in dispute.

All the solicitors had to do was to advise on funding, obtain a medical report with copies of the notes and records, complete the online minor injury portal Claim Notification Form and then provide a copy of the medical report to the Defendant and negotiate settlement and a formal written advice on settlement for the benefit of the Court.

The solicitors advised Ms Lewington to sign up to a CFA and to take out an ATE insurance policy. They instructed a medical expert through their own wholly owned subsidiary medical reporting agency, On Time Reports Limited, and Mr Asif Malik FRCEM, Consultant in Emergency Medicine, produced a very straightforward report dated 11 March 2024.

The Stage 2 settlement pack including the medical report were supplied to the Defendant on 19 March 2024 with an offer to settle of £10,031.66. The Defendant responded 24 days later by email with an all-inclusive counteroffer of £10,000 which was formally accepted 2 weeks later. Part 8 proceedings were issued and the case listed for an infant approval hearing.

At the infant approval hearing listed before me, I had no difficulty in approving the proposed settlement of £10,000 damages. The between the parties fixed costs had been agreed prior to the hearing including all the disbursements, namely the Court issue fee, the cost of the medical report and of obtaining the medical records. The only further issue I had to consider was the request for a deduction of the success fee under the CFA and of the ATE premium set at 10% of the recovered damages plus IPT.

A schedule of solicitor and own client costs was produced claiming that £13,316 worth of profit costs had been incurred with recorded time of 73.1 hours engaged on the matter between 18 different fee earners. I was also shown a copy of the CFA and Risk Assessment that assessed the percentage success fee at the maximum 100%. As 100% of £13,316 would be greater than 25% of the damages (25% of £10,000 = £2,500) a success fee of £2,500 was sought to be deducted together with the ATE Premium including IPT of £1,120 making total deductions of £3,620 which equated to 36.2% of the damages.

I was sceptical that even on a solicitor and own client indemnity basis that £13, 316 worth of costs could have been reasonably incurred and be reasonable in amount and the success fee percentage of 100% was obviously too high. In accordance with the Court’s duty to safeguard the interests of the child, I directed that the solicitors file with the Court a complete copy of their file of papers for inspection and assessment.

That file was duly lodged, and I have read the entire file including the time recording records.

Included within the bundle for the original approval hearing was a witness statement from Ms Lewington as Litigation Friend which was clearly a template statement prepared by the solicitors and not in her own words and therefore to be viewed with some degree of caution as its contents were obviously designed to be self-serving for the solicitors about the choice of funding model and ATE insurance. It was clear to me when I met Ms Lewington at the hearing that she didn’t really understand what was in the statement or its meaning and effect and that she had been conditioned to expect that 25% of Bradley’s damages would be deducted for the success fee as the norm. This witness statement is a specific requirement of Part 21 of the CPR.

In addition, I was provided with a witness statement by Eleanor Brickell, the Trainee Solicitor who had conduct of the claim. That was not really a witness statement but could better be characterised as a note of the relevant parts of the CPR particularly CPR 21.12 and 46.9 as well as the well-known authorities of Callery v Gray [2001] EWCA Civ 1117, West v Stockport NHS Foundation Trust [2019] EWCA 1220,Herbert v HH Law Ltd [2019] EWCA 527 and the persuasive judgment of HHJ Lethem in Wheeler v H&M Hennes & Ors. This was not a note that was prepared in the interests of the client but was more in the interests of the solicitor in seeking to persuade the Court to allow the ATE premium and £2,500 success fee to be deducted from the damages and paid to them.

For the paper hearing to consider the question of deductions I was provided with “written submissions on deductions” by Poppy Lawrie who is described as a Solicitor’s Clerk with Express Solicitors which rephrased a lot of the earlier note from Eleanor Brickell but also referred to the more recent decision of HHJ Monty KC in Duffield v Morrisons that I have already referred to above.

For the avoidance of any doubt, I have considered all of these rules and authorities with which the Court was already familiar, and I have maintained a keen interest in developments in this area since my judgments in A& M v Royal Mail [2015] EW Misc B24 and B30.

I have also considered the latest versions of the Solicitors Code of Conduct and the Warning Notice issued by the Solicitors Regulation Authority on 26 January 2026 regarding “no-win, no-fee” and other fee arrangements. While that Warning Notice was specifically directed to high-volume consumer claims, it provides a useful reminder of the obligations upon solicitors to comply with the SRA Principles particularly the following.

Principle 1 – act in a way that upholds the constitutional principle of the rule of law and the proper administration of justice

Principle 2- act in a way that upholds public trust and confidence in the solicitors’ profession and in legal services provided by authorised persons

Principle 5- act with integrity

Principle 7- act in the best interests of the client

The Warning Notice also served of a reminder of the following provisions of the Code of Conduct;

3.4 Consider and take account of your client’s attributes, needs and circumstances

8.6 Give clients information in ways they can understand, and ensure they are in a position to make informed decisions about the services they need, how their matter will be handled and the options available to them

8.7 Ensure that clients receive the best possible information about how their matter will be priced and, both at the time of engagement and when appropriate as their matter progresses, about the likely overall cost of the matter and any costs incurred.

The Warning Notice also set out concerns that some fee arrangements were not meeting the standards expected under the SRA Principles and the Code of Conduct and in particular a concern that clients’ interests were being compromised by firms structuring “no-win, no-fee” arrangements in ways that serve their own commercial interests rather than acting in their clients’ best interests. The Notice gave as an example funding arrangements that could benefit the firm more than the client.

Given my finding at paragraph 18 of this judgment that the Litigation Friend did not give fully informed consent to the charging model, applying Herbert, I have carried out a summary assessment on the indemnity basis of the reasonably incurred and reasonable in amount solicitor and own client costs.

The contractual hourly rates under the CFA were significantly higher than the guideline hourly rates issued by the SCCO. Although in the retainer documentation Express Solicitors mentioned that their hourly charges were higher than other firms may charge, they sought to justify this by their expertise in these matters, a factor under CPR 44.4 (3) (e). The repeated reference to the limitation of the client’s liability for costs to 25% of the damages was clearly designed to downplay any importance of the hourly rates in the CFA from the client’s perspective as the result would always be the same, an expected deduction of 25% of the damages and deduction of the ATE Premium.

In reality, on the facts of this most straightforward case where liability was admitted at the start and at the time of instruction of Express Solicitors they knew that all that had to be done was to obtain and serve a medical report and negotiate settlement. None of the factors in CPR Part 44.4 (3) really justify an hourly rate beyond the guideline rate for the fee earner with conduct with minimal supervision. This case could, and in my judgment should, have been run by the grade D fee earner with supervision from a grade B fee earner. Those were the grades of fee earner who were in fact engaged to conduct the case. The reasonably incurred time would have been 15 hours at Grade D and 2 hours at Grade B and that is being relatively generous bearing in mind that this assessment is on the indemnity basis where the benefit of any doubt is in favour of the receiving party. In the CFA the hourly rates stated were £345 per hour for a grade B and £235 for a grade D. The 2023 guideline hourly rates were £218 for grade B and £126 for grade D. In my judgment, the base costs should have been no more than £3,000 which in itself is more than the guideline rates total of £2,326.

A success fee of 100% cannot be justified in this case given the minimal risks involved in the case being unsuccessful. Applying the traditional ready reckoner table for success fees a 100% success fee is applicable where the chances of winning are assessed at 50%. In this case, on the facts, the prospects of success were about as close to 100% as there could be. Allowing for the minimal risks involved and taking into account the deferment of not being able to charge until the conclusion of the case, a more realistic assessment of the prospects of success would be 90% which applying the ready reckoner equates to a success fee of 11%. In my judgment therefore the appropriate success fee in this case would be £3,000 x 11% = £330 + VAT.

Insofar as the ATE Premium is concerned this is a question of whether taking out an ATE policy was a reasonable expense for the Litigation Friend to incur on the child’s behalf. In my judgment it was not. What risk was there to insure against where the solicitors own client profit costs are covered by the CFA? The risk of not being able to recover the Court issue fee? The Defendant’s Claim Handling Agents had told the Litigation Friend that a Court hearing was necessary so there was no risk whatsoever of failing to recover that. The costs of the medical report? Again, the Claims Handling Agents had explained that a medical report was required and that the Litigation Friend should instruct solicitors to obtain one, which she did. All the disbursements were paid by the Defendant without question as part of the proposed settlement and there was no real risk that they wouldn’t do so. The only possible risk of an adverse costs order was in the event of failing to beat a Part 36 offer but given that approval by the Court was always going to be required that risk in this case was practically non-existent and certainly didn’t justify the expense of a premium to be calculated as 10% of the recovered damages + IPT of £1,100. The deduction of the ATE Premium is therefore disallowed. If HHJ Monty KC in Duffield meant that wherever there was any risk it was always reasonable to take out an ATE policy (and I doubt that is what he meant, rather he meant that each case had to be considered on its own facts), then I respectfully disagree with him.

In conclusion, the appropriate deduction of additional liabilities from the Claimant’s damages is limited to the success fee of £330 + VAT.

This case raises continuing concerns about how some firms are operating in their approach to charging through CFAs. It is hoped that the Warning Notice issued by the SRA referred to in paragraphs 22 and 23 above will provide a timely reminder of the importance to solicitors of complying with the SRA Principles and Solicitors Code of Conduct and as the authors of Cook on Costs have remarked in their latest edition at 36.8

Solicitors who are acting in this way through their business models have been warned that the Courts will remain vigilant and the next step may well be investigation by the SRA given the Warning Notice of January 2026.