The Dekagram: 29th September 2025

This week William Dean examines a case in which a litigant’s arguments were described as an ‘affront to common sense’ – perhaps unsurprisingly, the outcome was not to his advantage. Conor Kennedy, meanwhile, looks at recovery of success fees and ATE premiums in infant settlement cases.

What Are “Proceedings”? The Court of Appeal Dismisses an “Ingenious” Argument as an “Affront to Common Sense”

In Gotti v. Perrett [2025] EWCA Civ 1168, the Court of Appeal considered the power of a court to award costs on the discharge of an injunction where no steps had been taken to issue a claim (and no claim form was ever issued).

The case arose out of an application for an injunction under the Protection from Harassment Act 1997. It was sought by the director of a cosmetic surgery company who wished to prevent the respondent from making adverse statements through social media. After what Cobb L.J. called “a short, contested hearing”, the injunction was granted.

In the hindsight afforded by the distance and scrutiny of a second appeal to the Court of Appeal, the appellant accepted that his application had been “deeply misconceived” for several reasons, including that:

• the appellant had intimated an action for defamation under the Defamation Act 2013, but (absent the agreement of the parties) the County Court had no jurisdiction to hear such claims;
• an interim injunction is not an available remedy where a claim for defamation is defended;
• the “jurisdictional reach” of the Protection from Harassment Act 1997 is England and Wales, but the respondent lived in Scotland;
• the judge had not been invited to consider section 12 of the Human Rights Act 1998 and the “higher test” it imposes before relief may be granted where Article 10 is engaged; and
• the terms of the injunction sought (and made) were “almost certainly unworkable”, including by imposing on the respondent requirements to direct the behaviour of other persons who published comments through social media and prohibited “comments or remarks considered to be defamatory” (which appeared to the Court of Appeal to permit the appellant to determine what met the description).

After the interim injunction was made, the appellant filed further evidence, but he had given no undertaking to issue a claim. At no stage did he issue a claim form.

Subsequently, the respondent applied to discharge the injunction, to which the appellant consented. In reply to the respondent’s application for costs (and damages), however, the appellant undertook what the respondent’s counsel called a “spectacular volte face”, arguing that because there had been no claim form, there were no proceedings properly before the court and, accordingly, no jurisdiction to award costs. The deputy district judge described the argument as “ingenious” before roundly dismissing it. He held that he could use r.3.1(7) to vary the interim order to insert into it a direction under (what was then) r.25.2(3) that a claim be issued. On the first appeal, H.H.J. Salmon (who called the appellant’s submissions “unattractive”) deployed his jurisdiction in r.3.10 to remedy the appellant’s error by ordering that his original application “stand as a claim form in the proceedings”.

The appellant managed to gain permission for a second appeal, notwithstanding that the judge granting permission considered his argument as “an affront to common sense” (a description also used by H.H.J. Salmon and two of the three judges in the Court of Appeal). Unsurprisingly, given that preview as well as the substance of his argument, the appellant was unsuccessful.

Cobb L.J. reviewed the relevant statutory provisions and authorities on the meaning of “proceedings”, noting the Supreme Court’s comment in Plevin v. Paragon Personal Finance Ltd [2017] UKSC 23 that it “must depend on [the] statutory context and on the underlying purpose of the provision in which it appears”. He held that the issuing of the original application “constituted the commencement of proceedings” and “[t]he court accordingly retained an active jurisdiction, enabling it to make further orders in favour of” the respondent.

• First, the court had exercised an equitable jurisdiction in granting the injunction; and “the grant of injunctive relief is not always conditional on the existence of a subsisting cause of action”.
• Secondly, the word “proceedings” as used in the County Courts Act 1984 was “wide enough to include an application for pre-claim injunctive relief”. Cobb L.J. cited with approval H.H.J. Salmon’s formulation that he summarised (in part) as: “the word ‘proceedings’ includes all applications with which the court is seised, and in respect of which it is being asked to make orders … or where the court ‘is being invoked to do something, i.e. in this case to grant an injunction’”; and  “when a party takes ‘a course of action’ in order to obtain a remedy from the court these will be ‘proceedings’ even if ‘in the wrong format’”.
• Thirdly, by section 51 of the Senior Courts Act 1981, costs “of and incidental to all proceedings” in the County Court were in the court’s discretion, and “courts routinely make costs orders when they hear urgent interim injunction applications, whether or not a claim form has been issued or will be issued in due course”.
• Fourthly, if the appellant were correct that the original application did not constitute “proceedings”, then various important provisions – including the overriding objective – would not apply to its management and determination, which “simply cannot … be right”.
• Fifthly, the appellant’s written argument conceded that the County Court “had the power to make the interim injunction” and, “as a corollary, a jurisdiction to discharge it”.

After so disposing of the appellant’s “inventive submissions” on the existence of “proceedings”, Cobb L.J. also briefly dealt with the availability of r.3.10 to be deployed as H.H.J. Salmon had used it. He cited Hannigan v. Hannigan [2000] EWCA Civ 159, in which the Court of Appeal “took a liberal approach to … technical errors” where “no real prejudice had been caused” to the opposing party, as well as the guidance in Peterson v. Howard de Walden Estates Ltd [2023] EWHC 929 that “error of procedure” should not be given “an artificially restrictive meaning” and r.3.10 could be read “widely”. Cobb L.J. considered that it would be “unconscionable to allow the appellant to benefit from his own failures”; he had believed (at least initially) that he had commenced a legitimate action and the court would cure his procedural error notwithstanding that to do so was no longer to his advantage.

Both of the other judges, Stuart-Smith and King L.JJ., added that, in their view, the fact that the appellant’s case “involve[d] an affront to common sense” should “make the courts at any level intensely reluctant to accede to [it] unless compelled by inescapable logic or binding prior authority to do so”. Thus ended, after great time and expense, the appellant’s effort to escape the consequences of his own litigation.

About the Author

William Dean has a busy personal injury practice involving both domestic and foreign accidents. He is a contributor to the Butterworths Personal Injury Litigation Service, in which he is the author of the “Foreign Accidents” section. He also acts in tribunal claims against the Criminal Injuries Compensation Authority, including in cases involving foreign jurisdictions, and is a contributor to the leading textbook in that field.

Success fees are a matter of contract between lawyer and client, not a matter of costs inter partes.

In a recent appeal in the case of Duffield v WM Morrison Supermarkets Ltd [2025] EWCC 35, HHJ Monty KC has given welcome guidance as to the proper approach to be taken in assessing the appropriateness of success fees and ATE premiums.

The underlying claim involved a personal injury claim. The infant Claimant, by his litigation friend his mother, had instructed solicitors to act on a conditional fee agreement (“CFA”), under which the solicitors would enjoy a 100% uplift on the solicitors’ base costs. The CFA also provided for an ATE premium.

The claim was settled, and the matter was then listed before a district judge for consideration of the litigation friend’s request for deduction of her reasonable expenses (i.e. the success fee and ATE premium) from the damages agreed.

The District Judge approved the settlement, but allowed only a reduced success fee, and allowed nothing for the ATE premium, despite having found that the success fee was reasonably incurred. They took into account “the general approach of Simmons v Castle”, and in accordance with that authority, limited the success fee to 10% of the agreed damages.

HHJ Monty KC allowed the appeal (which was unopposed). In his judgment, it was “not open to the judge to determine the amount of the deductible success fee by reference to a Simmons 10% uplift on damages.  The Simmons uplift has nothing to do with the contractual recovery of a success fee between contracting parties.  That success fee will – in appropriate cases, such as the present one – be subject to the limitation on recovery imposed by CPR 21.12, but the basis is contractual.”

Whilst success fees fall within “costs” under CPR 21.12, the court must also have regard to CPR 46.9 and to the fact that if there were to be an assessment between the solicitor and litigation friend, it would be on an indemnity basis. Departing from CPR 46.9 would thus render the litigation friend vulnerable to personal liability for costs which are not permitted under CPR 21.12, but are not open to challenge as between the litigation friend and the solicitor.

In terms of the amount of the success fee, HHJ Monty KC could not “understand how it could be appropriate to quantify the success fee by reference to (a percentage of) the damages.  Even taking into account the “eight pillars of wisdom”, against the background of (a) a contractual arrangement between the solicitors [the litigation friend] (b) which provides for an uplift on costs not damages (c) in circumstances where [the litigation friend] entered freely into the contract and understood its terms, it strikes me as wrong in principle to depart from the contractual provisions, which base the uplift on costs not damages”.

The appeal was not interfering with a legitimate exercise of judicial discretion in circumstances where the first instance judge had failed to apply the presumptions and assumptions in CPR 46.9. In particular, where a client has expressly approved costs, there will be a presumption that those costs will have been reasonably incurred. In the absence of evidence to rebut that presumption, the presumption would prevail.

The correct approach in respect of success fees is that set out in Herbert v HH Law Ltd [2019] EWCA Civ 527 at [33-36].

In respect of the ATE premium, it made “no sense to have allowed a success fee […] but to have refused to allow the deduction of the ATE premium […] There was a litigation risk in this case, it was not open […] to find that it was unreasonable for [the litigation friend] to have insured against that risk.” As such, the judge’s conclusion that the ATE was not reasonably entered into was not just an exercise of discretion, but was wrong.

The proper approach to determining what may be deducted from damages is to determine what is reasonable. The court should ask i) is there material which causes the court to question whether informed consent was given? ; ii) if so, what evidence was there that informed consent was given?; iii) if the court is not satisfied that informed consent was given, the success fee should be disallowed. If it is so satisfied, then the success fee should be allowed. Likewise, the proportionality of the ATE premium is not an issue.

Conclusion

Whilst it is a judgment at County Court level, this decision should provide useful and clear guidance for judges dealing with the increasingly complex area of success fees and recoverable disbursements. Judges do not like to see claimant damages eaten away by costs and disbursements, but certainty as to what can be recovered should help claimants to secure legal representation in a wider range of claims.

About the Author

Called in 2011, prior to pupillage Conor Kennedy spent two years working with a leading insurance law firm, gaining experience across regulatory, employment, leisure, travel and public sector teams. He has a varied civil practice and is accredited for Direct Access instruction, but has a particular interest and expertise in claims involving fundamental dishonesty.