29 May 2008
Kilby v Gawith [2008] All ER (D) 248 (May)
The question to be decided was whether there is a discretion under CPR 45.11(1) to allow a success fee once the claimant has entered into a conditional fee agreement.
HELD While CPR r 45.11(1) provides that a claimant “may recover a success fee”, the natural meaning is that a claimant is entitled to claim a success fee. CPR r 45.11(2) provides that the amount of the success fee “shall be” 12.5%, which means that where a success fee is recovered it has to be 12.5%. If the draftsman had intended there to be a discretion to grant a success fee, he would not have fettered that discretion by specifying the amount.
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