Chocken v Oxford University Hospitals NHS Foundation Trust

When assessing a conditional fee agreement success fee, the court must assess the risks as they reasonably appeared when the agreement was made, without hindsight. A staged fee is permissible, but each percentage and trigger must be justified by the anticipated risk of recovering costs at that stage. The issue or service of proceedings does not automatically justify an increased fee. The court must examine whether proceedings materially increased the risk of losing the claim or recovering costs. Claim value and complexity do not, by themselves, increase the risk of losing, although they may create additional litigation risks, including the risk of failing to beat a Part 36 offer.

The claimant appealed against a detailed assessment by Master James, who allowed a 50% success fee under a conditional fee agreement but rejected an increase to 80% on service of proceedings. The underlying clinical negligence claim concerned permanent leg injuries following compartment syndrome after surgery. Liability had been admitted subject to causation before proceedings were issued, but quantum remained substantial and contested. The claimant argued that the Master had used hindsight, misunderstood staged success fees, undervalued the complexity and quantum dispute, and failed to take account of immigration risk. The central issues were whether the assessment applied the correct date for evaluating risk and whether service of proceedings justified the second-stage fee.

1. Appeal dismissed. The Master was entitled to assess the success fee at 50% throughout. Her order was upheld.
2. The applicable provisions were the pre-April 2013 versions of CPR 43 to 48 and the Costs Practice Direction, because the CFA was entered into on 3 December 2012. The relevant assessment concerns the facts and circumstances reasonably apparent when the funding arrangement was made.
3. The Master did not impermissibly use hindsight. Her references to the later admission of liability were read as a cross-check on the reasonableness of the original assessment. Her primary reasoning assessed the risks at the outset.
4. A solicitor may choose when, and whether, to stage a success fee. The level of each fee and the trigger must nevertheless be justified by the anticipated risk of non-recovery of costs at that time. The logic of staged fees in Callery v Gray and U v Liverpool City Council arose in materially different contexts, particularly low-value claims likely to settle early.
5. On the facts, the relevant risks, including liability, Part 36 exposure and possible repatriation to Mauritius, had already been reflected in the initial 50% fee. Service of proceedings did not create an additional risk. The claim was likely to require proceedings even if liability were conceded, and the solicitor controlled whether proceedings were issued.
6. The value and complexity of the claim did not themselves increase the risk of losing. They could affect the number of potential pitfalls and the risk of failing to beat a Part 36 offer. The Master was entitled to conclude that no higher fee was justified before settlement.
7. The fifth ground was abandoned because the Master had in fact treated possible repatriation as making the claim more risky. The respondent’s alternative arguments did not require determination.

High Court (Queen's Bench Division): Appeal from Master James's detailed assessment dismissed. The 50% success fee assessment was upheld.