Callery in Action

Bensusan v Freedman (SCCO 20 September)

In his first decision after the Court of Appeal decision in Callery v Gray (20/LL p87) the Senior Costs Judge, Master Peter Hirst, equated a simple clinical negligence case, which involved a dental tool being dropped in the claimant’s mouth who then swallowed it, with a personal injury action arising out of a rear-end shunt. (The analogy escapes us!). While accepting that the risk of failure in a clinical negligence action can be greater than in a PI case, this particular case was ‘simple and straightforward’. Costs Practice Direction section 11.7 provides that, subject to paragraph 17.2, the court when considering the factors to be taken into account will have regard to the circumstances as they reasonably appear to the solicitor or counsel when the funding arrangement was entered into and at the time of any variation of the arrangement. Paragraph 18.8(2) provides that in cases in which an additional liability is claimed, the costs judge should have regard to the time when and the extent to which the claim has been settled and to the fact that the claim has been settled without the need to commence proceedings. In Callery v Gray the Court of Appeal indicated that in a routine road traffic accident action the success fee should not exceed 20 % and the Senior Costs Judge took the same view in this case, reducing a success fee of 50 % to 20 %. Using Callery as ‘no more than a starting point’, he said the effect of the Costs Practice Direction was ‘to prevent excessive claims for success fees in cases which settle without the need for proceedings when it was clear, or ought to have been clear, from the outset that the risk of having to commence proceedings was minimal.