Bullock v Denton – The winner takes it all, and the success fee
A successful 1975 Act claimant was able to recover her success fee as part of her award in a recent unreported case.
Anyone familiar with this area of law may have come across the argument that the success fee to be paid to the claimant’s legal team should be considered as part of their financial need.
Now there is legal authority for this proposition in the recent case of Bullock v Denton and Willoughby heard in the Leeds County Court.
The successful claimant, Yvonne Bullock, brought a claim against the estate of Simon Denton as his cohabiting partner of some five years. The nature of the relationship was hotly contested by the principal defendant, the deceased’s brother and sole beneficiary of his will, who argued she was just a housekeeper. She also claimed as the deceased’s dependant. Out of an estate of approximately £2-million, she was awarded a life interest in a sum of £140,000 to purchase a property and an additional £65,000 to cover a number of further costs including moving fees, the costs of replacing white goods and paying off historic debts.
One of the most interesting aspects of the case was Judge Gosnell’s decision to award the claimant £25,000 as a contribution towards the uplift she would have to pay to her Counsel and solicitors.
The defendants contended that allowing her to recover this as part of her award would circumvent the Jackson reforms, as implemented by the Legal Aid Sentencing and Punishment of Offenders Act 2012, which prevent successful claimants from recovering success fees from opponents.
The judge ultimately determined he was entitled to take the claimant’s success fee into account as part of the award because it fell within her financial need under section 3 (1) (a) of the 1975 Act and because he was also entitled to take into account debts incurred after the deceased’s death.
The judgment explicitly acknowledged that Ms Bullock would not be legally entitled to recover her success fee from the defendants when her costs were ultimately determined. It also acknowledged that including it as part of her award could be seen as allowing the same recovery by the back door. However, the judge concluded that if it was not factored into his award then Ms Bullock’s ability to meet her living costs going forward would be put in jeopardy.
Giving the judgment, his Honour Judge Gosnell highlighted the difficulties faced by a judge when trying to give an award under the 1975 Act that will meet the claimant’s future maintenance need while being aware that the potential cost consequences of without prejudice negotiations may ultimately significantly unravel that decision.
The decision did not, however, allow the claimant to recover all of her success fee exposure. The judgment states Ms Bullock instructed her original solicitor under a damages based agreement under which he would receive one-third of any award up to £150,000 and 10% thereafter. She then changed horses and instructed new solicitors and also Counsel, both under CFAs with a 50% uplift. She was awarded £250,000 on the basis that this was said to be the claimant’s likely exposure before trial. However, the true sum owed under these agreements was likely to be considerably more as a result of the trial costs.
The decision was made by a circuit judge in the Leeds County Court and therefore is not binding authority. It may yet be appealed. In the interim, it may be a case worth referencing when acting for a claimant under a CFA.
The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.
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