Claimant Recovers Full Success Fee Where ´Before The Event Insurance´ Available

Kilby v Gawith [2008] All ER (D) 248 19 May, Unreported

The facts: C had a 'before the event' (BTE) legal expenses insurance policy that entitled C to legal representation for certain insured events. If C used this policy D, who became the paying party, would incur liability for C's solicitors' fixed recoverable costs under Part 45 of the Civil Procedure Rules (CPR). C was injured in a road accident, which event was covered by the policy. However C instructed solicitors who failed to ascertain whether C had any BTE insurance. Instead of using the BTE policy, they entered into a conditional fee agreement (CFA) with C. D appealed a first instance decision to the effect that because r 45.16 was a statutory scale that excluded the courts general discretion on costs, C was entitled to recover 12.5% success fee in addition to the fixed recoverable costs.