Hurst sets 20% success fee for simple negligence case

A reasonable success fee that can be recovered in simple clinical negligence cases should be no more than 20%, the senior costs judge, Peter Hurst, has ruled.In his first decision after the Court of Appeal - with his assistance - decided in Callery v Gray that a reasonable success fee in personal injury cases is 20%, Judge Hurst cut down a success fee of 50% sought by specialist claimant dental lawyer David Corless-Smith of the Dental Law Partnership in Cheshire.The case, Bensusan v Freedman, involved a dental implement being dropped into the mouth of the claimant, who then swallowed it.While accepting that clinical negligence can be riskier than personal injury cases, Judge Hurst said this was a straightforward case.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'.The defendant's solicitor, Ricardo Bassani of Le Brasseur J Tickle, initially offered a 10% success fee, and lifted it to 20% after Callery.He told the Gazette: 'The judgment gives helpful guidance in the field of clinical negligence claims.

It is the first guidance given by the leading costs authority, albeit at first instance.'Mr Corless-Smith said he and his client had decided that an appeal would not be cost effective.Neil Rose