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Court opens door to recovering success fees in Probate Dispute cases

The Court of Appeal in the case of Hirachand v Hirachand and another [ 2021] EWCA Civ 1498 has now opened the door to success fees under a conditional fee arrangements being recovered

In this case a contested probate dispute had been funded under a conditional fee arrangement whereby the case was funded on a no win no fee basis subject to the payment of a success fee  .

Whilst in the raft of other types of cases where a CFA is available it has not always been possible to recover a success fee as part of a claim , particular circumstances arise in appropriate contested probate cases .

As the Court noted Para 58

"In a financial remedy case, outstanding costs which could not otherwise be recovered as a consequence of the 'no order principle' are capable of being a debt, the repayment of which is a 'financial need' pursuant to s25(2)(b) MCA 1973. In my judgment a success fee, which cannot be recovered by way of a costs order by virtue of section 58A(6) CLSA 1990, is equally capable of being a debt, the satisfaction of which is in whole or part a 'financial need' for which the court may in its discretion make provision in its needs based calculation "

However that does not mean it will occur in every case and the Court qualified it intimating that the likely criteria are :

  • It is unlikely that an award will include a sum representing part of the success fee unless the judge is satisfied that the only way in which the claimant had been able to litigate was by entering into a CFA arrangement
  • consideration will  be given of the extent to which the claimant has 'succeeded' in his or her claim.
  • an order will only be made to the extent necessary in order to ensure reasonable provision is made

Accordingly the award of £16,750 as a 25% uplift on the claimant’s costs constituting a contribution towards her success fee liability was upheld .

Funding for disputed probate cases as a result

The first issue for any litigant to determine with their solicitor is therefore firstly whether the case is suitable for a Conditional Fee Arrangement .

If a CFA can be entered into it should now be expected that careful advice will be provided over whether such a success fee in the circumstances can be recovered .

These can be complex considerations and if you are in the middle of a probate dispute it is important to obtain early advice as to your position , such disputes arise in a range of circumstances including concerns over testamentary capacity , undue influence and the failure to make reasonable provision



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