KA-2023-MAN-000005 - [2025] EWHC 1593 (KB)

Ground 12 relates to the success fee. The success fee arises under a conditional fee arrangement dated 17 January 2019. This was shortly before the rules changed on 6 April 2019. In other words, as Mr McCracken observed, this point arises only because this is an old case. The relevant issues are of historic interest only. They are of no significance to any future case.

The recovery of success fees was generally restricted, from 1 April 2013, by s. 44 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which amended ss. 58 and 58A of the Courts and Legal Services Act 1990. However, by the associated Commencement and Saving Provision Order, SI/2013/77, there was a saving in respect of “publication and privacy proceedings”. This was defined as meaning proceedings of certain specified kinds, including “breach of confidence involving publication to the general public” and “misuse of private information”.

The claim under the GDPR did not fall within any exception; and this claim failed before the Recorder. The claim for breach of confidence did not involve publication to the general public, so that claim also was not excepted. However, because there was also a claim for misuse of private information, which was an excepted claim and which succeeded, the Recorder took the view that the success fee should be recoverable in full.

In reaching that view, he accepted the submissions made by Mr McCracken to the following effect:

The Recorder decided that the success fee should be recovered in full, and that it should not be split. On that last point, he said simply:

“I have also considered the issue of a split to see whether I should say because it applies to part of the claim and that therefore I ought to say that it applies only to certain parts or certain percentages. Again, I am not attracted by that argument. It seems to me that the facts here were fairly composite and whilst three different headings were put on the same facts, those are different legal arguments essentially relating to the first point. If the defendant had, for example, said we admit the misuse of private information but deny the DPA claim, it may well be that my findings would have been different. But in the absence of that sort of splitting approach between the parties, it seems that I should deal with this as one and I find in favour of the claimant for those reasons.”

Before me, Mr Waite said that the Recorder was wrong in principle to allow the recover of the success fee, in so far as this was a personal injury claim and CPR 44.13 therefore meant that Qualified One-Way Costs Shifting was applicable. In the alternative, he said that the Recorder should not have allowed the recovery of 100% of the success fee.

I do not accept that CPR 44.13 (which in any case is subject to CPR 44.17, and thus does not apply to a pre-commencement funding arrangement) has any bearing on whether or not a claim for the misuse of private information is an excepted claim in respect of the general restriction of success fees. The applicability of Qualified One-Way Costs Shifting is a separate matter. To this extent, I agree with the Recorder’s approach to the recovery of the success fee.

I find the Recorder’s explanation of why he then allowed the recovery of 100% of the success fee, and was not attracted to the idea of splitting it, somewhat opaque. However, I recognise that he was giving a ruling on costs in a fast-track trial. It would be unfair to expect him to have descended into great detail.

I suspect that, if I had been the trial judge, my exercise of the discretion may well have been different. However, the Recorder’s decision was not wrong in principle. Ground 12 therefore also fails.