The County Court sitting at Oxford’s decision in Spicer v Greene King Brewing and Retailing Limited [2026] EWCC 18 concerned the deduction of CFA success fees and ATE insurance premiums from a child claimant’s damages in a “straightforward” personal injury claim where liability was never in dispute.
Background
This judgment by District Judge Lumb in the County Court sitting at Oxford carries the neutral citation [2026] EWCC 18, though the internal hand-down notice records the date as 17 April 2024. The judgment arose from a personal injury claim brought on behalf of Bradley Spicer, a child, by his mother and litigation friend, Jessica Lewington, against Greene King Brewing and Retailing Limited.
On 4 August 2022, Bradley, then aged four, was visiting The Rowing Machine public house in Witney, Oxfordshire — a pub owned by the defendant — with his family. While playing in the pub garden with his elder sister, he tripped on uneven paving slabs and suffered a laceration to his forehead. He was taken to Witney Community Hospital, where the wound was closed with steristrips and he was discharged. The wound healed fully within two months, leaving a faint scar below the hairline visible only on close inspection.
Liability was never in dispute. The pub manager admitted liability at the scene and offered Ms Lewington vouchers as compensation. Ms Lewington considered the vouchers insufficient and contacted Greene King directly, whose claims handling agents, Gallagher Bassett, advised her that as Bradley was a child, any damages would require court approval, and asked her to instruct solicitors to obtain a medical report. Following a recommendation from a local solicitor, Ms Lewington instructed Express Solicitors, based in Manchester, in June 2023.
Express Solicitors advised Ms Lewington to enter into a Conditional Fee Agreement and to take out an After the Event insurance policy. A medical report was obtained through On Time Reports Limited — described in the judgment as a wholly owned subsidiary medical reporting agency of Express Solicitors — with Mr Asif Malik FRCEM, Consultant in Emergency Medicine, producing a report dated 11 March 2024. The Stage 2 settlement pack was provided to the defendant on 19 March 2024 with an offer to settle of £10,031.66. The defendant responded with an all-inclusive counter-offer of £10,000, which was formally accepted approximately two weeks later. Part 8 proceedings were issued and the matter was listed for an infant approval hearing.
At the infant approval hearing on 15 August 2024, District Judge Lumb had no difficulty approving the proposed settlement of £10,000. The between-the-parties fixed costs, including disbursements, had been agreed prior to the hearing. The remaining issue was the proposed deduction from Bradley’s damages of a success fee under the CFA and an ATE insurance premium.
A schedule of solicitor and own client costs was produced claiming £13,316 in profit costs, based on 73.1 hours of recorded time across 18 different fee earners. The CFA and risk assessment assessed the success fee percentage at the maximum 100%. As 100% of £13,316 would exceed 25% of the damages (25% of £10,000 being £2,500), a success fee of £2,500 was sought, together with an ATE premium including Insurance Premium Tax of £1,120, producing total proposed deductions of £3,620 — equivalent to 36.2% of the recovered damages.
District Judge Lumb was sceptical that £13,316 in profit costs could have been reasonably incurred or reasonable in amount on even an indemnity basis, and considered the 100% success fee percentage to be obviously too high. In exercise of the court’s duty to safeguard the interests of the child, the solicitors were directed to file the complete file of papers for inspection and assessment. Following receipt of the file, a paper hearing was conducted to consider the solicitor and own client costs and the ATE premium.
Costs Issues Before the Court
The judgment addressed two discrete costs issues arising in the context of the court’s approval of a settlement on behalf of a child claimant under CPR Part 21: first, the appropriate level of the success fee deductible from the child’s damages under the CFA; and second, whether the ATE insurance premium was a reasonably incurred expense that could properly be deducted from those damages.
The broader context, as District Judge Lumb noted at the outset, was a pattern of apparent error — both by practitioners and the judiciary — in the application of the correct tests when assessing additional liabilities in children’s personal injury claims. The judgment set out the correct analytical framework in some detail. In relation to ATE premiums, the question is whether taking out the policy was a reasonably incurred expense; absent actuarial or underwriting evidence as to the appropriate level of premium, the premium should either be allowed in full or disallowed. In relation to success fees, the correct approach requires the court first to assess the reasonable base profit costs (the multiplicand), then to apply the appropriate success fee percentage assessed by reference to the risk of losing the case (not as a percentage of damages), and finally to compare the resulting figure against 25% of the general damages for pain, suffering and loss of amenity and any past special damages — capping the deduction at that figure if the calculated success fee exceeds it.
District Judge Lumb, who has maintained a keen interest in this area since his own judgments in A & M v Royal Mail [2015] EW Misc B24 and B30, also identified two recurring errors in practice: first, an assumption by some practitioners that the success fee will always amount to 25% of the damages — an approach that risks constituting an unlawful contingency fee arrangement; and second, a failure to produce solicitor and own client base costs, which prevents the court from performing the first stage of the calculation at all.
In the present case, the specific issues were: (i) whether the claimed profit costs of £13,316 across 73.1 hours and 18 fee earners were reasonably incurred and reasonable in amount; (ii) what the appropriate success fee percentage was, given the nature and risk profile of the claim; and (iii) whether the ATE premium of 10% of recovered damages plus IPT (totalling £1,120) was a reasonably incurred expense in the circumstances of the claim.
An additional issue arose in relation to informed consent. District Judge Lumb found that Ms Lewington, as litigation friend, did not really understand what was in the witness statement or its meaning and effect, and had been conditioned to expect a deduction of 25% of damages as the norm. This finding engaged the principles in Herbert v HH Law Ltd [2019] EWCA Civ 527 and informed the court’s approach to the assessment.
The Claimant Solicitors’ Position
Express Solicitors, acting for the claimant, sought deductions from Bradley’s damages totalling £3,620, comprising a success fee of £2,500 (representing 25% of the £10,000 settlement) and an ATE premium including IPT of £1,120.
In support of the proposed deductions, the solicitors relied upon a witness statement from Eleanor Brickell, the trainee solicitor with conduct of the claim, which District Judge Lumb characterised not as a genuine witness statement but as a note of the relevant provisions of the CPR — particularly CPR 21.12 and 46.9 — and the authorities of Callery v Gray [2001] EWCA Civ 1117, West v Stockport NHS Foundation Trust [2019] EWCA Civ 1220, Herbert v HH Law Ltd [2019] EWCA Civ 527, and the persuasive judgment of HHJ Lethem in Wheeler v H&M Hennes & Ors. Written submissions were also provided by Poppy Lawrie, described as a solicitor’s clerk, which largely repeated the earlier note and additionally referred to the decision of HHJ Monty KC in Duffield v WM Morrison Supermarkets Ltd [2025] EWCC 35 (the judgment cites this as “EXCC 35”, which appears to be an error).
The solicitors’ position on the success fee rested on the claimed profit costs of £13,316 and a risk assessment that assessed the appropriate success fee percentage at the maximum 100%. The effect of this approach — combining high claimed base costs with the maximum success fee percentage — was that the 25% cap on deductions from damages would inevitably be reached regardless of what percentage the court might assess as reasonable. District Judge Lumb noted that this practice drew suspicion that it was deliberately designed to ensure the cap was always reached, with clients conditioned to expect a 25% deduction and therefore unaware that the solicitors may have been acting in their own interests contrary to those of the client, in potential breach of the Principles of the Solicitors Code of Conduct.
The Court’s Assessment
Having found that the litigation friend did not really understand the witness statement or its meaning and effect and had been conditioned to expect a 25% deduction, District Judge Lumb applied Herbert and 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 Express Solicitors mentioned in the retainer documentation that their hourly charges were higher than other firms may charge, seeking to justify this by their expertise, 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 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.
On the facts of this straightforward case where liability was admitted at the start and at the time of instruction the solicitors 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) justified an hourly rate beyond the guideline rate for the fee earner with conduct with minimal supervision. The case could and should have been run by a grade D fee earner with supervision from a grade B fee earner — 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, being relatively generous bearing in mind that the assessment was on the indemnity basis where the benefit of any doubt is in favour of the receiving party. The CFA stated hourly rates of £345 per hour for grade B and £235 for grade D. The 2023 guideline hourly rates were £218 for grade B and £126 for grade D. The judge held that the base costs should have been no more than £3,000, which in itself was more than the guideline rates total of £2,326.
A success fee of 100% could not be justified 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%. The appropriate success fee in this case was therefore £3,000 x 11% = £330 plus VAT.
As to the ATE premium, this was a question of whether taking out an ATE policy was a reasonable expense for the litigation friend to incur on the child’s behalf. The judge held that it was not. What risk was there to insure against where the solicitors’ own client profit costs were covered by the CFA? The risk of not being able to recover the court issue fee? The defendant’s claims 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 would not 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 did not justify the expense of a premium calculated as 10% of the recovered damages plus IPT (the judgment contains an internal inconsistency here, stating £1,100 in paragraph 29 but £1,120 in paragraph 15). The deduction of the ATE premium was 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 the judge doubted that is what he meant, rather that each case had to be considered on its own facts), then District Judge Lumb respectfully disagreed.
Conclusion and Postscript
The appropriate deduction of additional liabilities from the claimant’s damages was limited to the success fee of £330 plus VAT.
District Judge Lumb concluded by raising continuing concerns about how some firms are operating in their approach to charging through CFAs. The judge expressed the hope that the Warning Notice issued by the SRA on 26 January 2026 regarding “no-win, no-fee” and other fee arrangements would provide a timely reminder of the importance to solicitors of complying with the SRA Principles and Solicitors Code of Conduct, particularly Principle 1 (upholding the rule of law and proper administration of justice), Principle 2 (upholding public trust and confidence), Principle 5 (acting with integrity), and Principle 7 (acting in the best interests of the client), as well as specific provisions of the Code including paragraph 3.4 (consider and take account of your client’s attributes, needs and circumstances), paragraph 8.6 (give clients information in ways they can understand, and ensure they are in a position to make informed decisions), and paragraph 8.7 (ensure that clients receive the best possible information about how their matter will be priced).
As the authors of Cook on Costs remarked in their latest edition at paragraph 36.8 (quoted with approval by the judge): “Courts will, however, remain alive to the possibility that unreasonably incurred base costs may give rise to the ‘Jackson Cap’ on success fees being reached where an assessment of those base costs is otherwise unnecessary because only a success fee is being sought.” That was the position in SJ (a minor suing by his mother and Litigation Friend AJ) v DGJ Tanner t/a Sopley Farm [2025] EWCC 17, in which the judge held that there was a considerable amount of duplication and “padding” in the bill of costs which substantially exceeded the fixed costs recoverable from the defendant, and which “raises a suspicion that the costs purported to have been incurred were artificially inflated to ensure that the 25% cap was always reached.”
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.
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