Ungi v Liverpool City Council

An application to set aside permission to appeal should be refused where the proposed appeal raises important points of practice requiring guidance, even though the appellant seeks to present its arguments in a materially different way. The Court of Appeal may permit the appeal to proceed subject to conditions under CPR 52.9(1). Where resolving the issue requires reconsideration of the reasonableness of a conditional-fee success fee at the time the agreement was made, the court may direct a rehearing and permit evidence addressing the risks then faced, including relevant statistical material.

The claimant recovered damages after a tripping accident involving a grass verge for which the defendant council was responsible. Her mother entered into a conditional fee agreement providing for a 100 per cent success fee. On detailed assessment, the district judge reduced the success fee applicable after the council filed its defence to 5 per cent. Judge Stewart QC held that the relevant risks were to be assessed when the agreement was entered into and allowed a 100 per cent success fee for the assessment proceedings.

Dyson LJ granted the council permission to appeal. Before the substantive appeal, the claimant applied to set permission aside, arguing that the council was advancing a new point not taken below.

1. The claimant’s application to set aside permission to appeal was refused. The appeal raised important practice issues concerning the interrelation between paragraphs 11.7 and 11.8(2) of the Costs Practice Direction and the calculation of a conditional-fee success fee.

2. The fact that the appellant wished to deploy its arguments in a substantially different way from that used before the circuit judge did not justify terminating the appeal. The court recognised that it might be difficult to determine whether the circuit judge had erred when the arguments before him had not addressed the precise wording of the conditional fee agreement.

3. The Court of Appeal should be able to consider the whole picture, including the reasonableness of the success fee at the outset, despite that issue not having been in dispute on the appeal as originally framed. It was desirable for the court to determine the success fee itself rather than remit that issue.

4. Under CPR 52.9(1), the appeal was permitted to continue subject to conditions. The costs orders below remained undisturbed, and the council was liable for the claimant’s Court of Appeal costs, limited to solicitor and junior counsel costs, subject to agreement or determination by the court.

5. The appeal was directed to proceed by way of rehearing before three Lord Justices, including one with expertise in success fees. The parties could produce evidence concerning the appropriateness of the 100 per cent success fee, including evidence of the issues confronting the solicitor when the agreement was made and potentially relevant market statistics.

• Liverpool County Court: Judgment was entered for the claimant on 22 May 2003, and settlement of £2,500 plus costs was approved on 4 August 2003.
• Detailed assessment: District Judge Humphrey-Roberts reduced the success fee applicable after the council’s defence to 5 per cent.
• Liverpool County Court: Judge Stewart QC held that the relevant risk was to be assessed when the conditional fee agreement was entered into and treated the applicable success fee as 100 per cent.
• Court of Appeal (Civil Division): Permission to appeal was continued, subject to conditions, and the claimant’s application to set it aside was refused with costs.