A personal injury solicitor who asked for his costs before a terminated claim ended should be paid with no cap on recovery, a court has ruled.

Senior Costs Judge Gordon Saker said Steven Simpkins, formerly practising as Simpkins & Co Solicitors, had effectively opted not to take the risk of waiting for a settlement. As a result, it was ruled, there should be no cap on what he could recover because he had elected to claim his basic charges before the case was won.

The court in Sellers v Simpkins heard that claimant Helen Sellers was seriously injured in a road accident in 2014 and instructed the Hampshire-based firm under a conditional fee agreement.

Simpkins conducted the claim until March 2021 when Sellers terminated the retainer and instructed Fieldfisher. Simpkins wrote immediately saying he would require payment of his costs, adding there was a ‘real risk’ of his firm missing out on what it was owed.

The claim settled under Sellers’ new solicitors five months later, but Simpkins did not deliver his bill until November 2022.

By the time of the hearing last October, there was no question that Simpkins had a valid and enforceable retainer: the issue was whether costs should be capped as set out in the CFA, based on the amount recovered.

Lawyers for Sellers, who applied for detailed assessment of the bill, said the termination of the retainer allowed Simpkins a choice of ‘stick or twist’ as in a card game. He could either ask for immediate payment of his basic charges or wait to see if the client won and then seek costs and a success fee, which would be subject to a cap.

The judge said there was no advantage to Simpkins electing to await the outcome of the case. He added: ‘It seems to me that while [Simpkins] did not "ask" for payment until he delivered a bill, in March 2021 he had exercised his right to decide that the claimant must pay his basic charges, expenses etc without waiting for the conclusion of the claim. Effectively, he had said “I’ll stick”.’

 

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