Which of the following is the correct answer to Callum's question?

Question

Callum Fraser is considering bringing a High Court claim in England for breach of contract against a former supplier. His solicitor proposes a conditional fee agreement with a success fee of 50% of base costs, entered into now. Callum asks: 'If I win and the court orders the supplier to pay my costs, will the supplier also have to pay your success fee?'

Accepted Answer

No, because a costs order cannot require the supplier to pay any of a success fee due under a conditional fee agreement; Callum pays it himself.

Answer

A. Yes, the success fee is recoverable from the supplier as part of the costs order, provided the court considers it reasonable in amount.

Answer

B. Yes, but only if Callum told the supplier about the conditional fee agreement before the claim was issued, as giving notice makes the success fee recoverable.

Answer

C. No, because a costs order cannot require the supplier to pay any of a success fee due under a conditional fee agreement; Callum pays it himself.

Answer

D. No, because success fees are prohibited in commercial claims such as this, so the agreement cannot lawfully include one at all.

Answer

E. Only half of it, because the success fee is shared equally between the client and the losing party under the costs rules.

CFA success fees are not recoverable from the losing opponent (CLSA 1990 s.58A(6))