Fixed fees and Part 36

Lamont v Burton CA TLR 7 June; NLJ 18 May

The claimant in a road traffic accident claim was represented under a conditional fee agreement but, although liability was admitted, he failed to beat a Part 36 payment. Accordingly, the claimant was awarded his costs up until the latest date on which the Part 36 payment could have been accepted. When those costs were assessed he claimed a 100% success fee under CPR rule 45.16 on the ground that the claim had been concluded at trial. The defendant argued that although rule 45.16 did not itself give the court jurisdiction to allow a different percentage increase, it contained a lacuna in that it did not deal with situations in which a claimant failed at trial to better a Part 36 payment, but this could be remedied if the court exercised its discretion under rule 44.3 to award a success fee no greater than it would have been under rule 45.16 had the offer been accepted, namely 12.5%.