Spicer v Greene King: 25% CFA Cap Is Not a Tariff [2026] EWCC 18

Funding & CFAs — 2026-04-17

Spicer v Greene King confirms that the 25% CFA success fee cap is a maximum, not a tariff. District Judge Lumb reduced the success fee sought from a child's damages from £2,500 to £330 plus VAT and disallowed the ATE premium.

Overview

Date: 17 April 2026

Judge: District Judge Lumb

Court: County Court sitting at Oxford

Citation: [2026] EWCC 18

Case Number: L00OX319

Nature of Proceedings: Infant approval hearing and adjourned paper assessment concerning proposed deductions from a child's damages

Key Issues:

Whether a CFA success fee should be deducted from a child's damages
Whether the 25% statutory cap operates as a default deduction
Whether an ATE premium was a reasonable expense in a low-risk child personal injury claim
The relevance of solicitor and own client base costs, guideline hourly rates and informed consent
The court's protective role in infant approval hearings

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The Facts

In Spicer v Greene King Brewing and Retailing Ltd [2026] EWCC 18, the County Court at Oxford considered whether a child's damages could properly be reduced by a CFA success fee and ATE premium where liability was never realistically in dispute and the proposed deductions amounted to more than one-third of the settlement.

Bradley Spicer, then aged four, was injured on 4 August 2022 while visiting The Rowing Machine public house in Witney, Oxfordshire with his family. He tripped on uneven paving slabs in the pub garden and suffered a gash to his forehead. The wound healed within two months, leaving a faint scar below the hairline, visible on close inspection [8].

The pub manager admitted liability at the outset and offered vouchers by way of compensation. Bradley's mother and litigation friend, Jessica Lewington, considered that inadequate and contacted Greene King. Its claims handling agents, Gallagher Bassett, told her that because Bradley was a child any damages would need court approval, and asked her to instruct solicitors to obtain a medical report so that the claim could be settled [9].

Ms Lewington instructed Express Solicitors in June 2023. The solicitors advised her to enter into a CFA and take out ATE insurance. A medical report was obtained through the solicitors' own wholly owned subsidiary medical reporting agency, On Time Reports Limited. The Stage 2 settlement pack was sent on 19 March 2024 with an offer to settle for £10,031.66. Greene King responded with an all-inclusive counteroffer of £10,000, which was accepted two weeks later [12-13].

At the infant approval hearing, District Judge Lumb had no difficulty approving the £10,000 settlement. The between-the-parties fixed costs and disbursements had been agreed. The unresolved issue was whether the child's damages should be reduced by a £2,500 success fee and an ATE premium of £1,120, making proposed deductions of £3,620, or 36.2% of the damages [14-15].

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The Court's Approach

1. The 25% Cap Is Not the Starting Point

The judgment begins with a clear statement of principle. In child personal injury claims, the court must apply the correct test to each additional liability. For ATE premiums, the question is whether the expense was reasonably incurred. For CFA success fees, the court must first identify the reasonable solicitor and own client base costs, then apply the appropriate success fee percentage based on the risk of losing, and only then compare the result with the 25% cap [3-4].

District Judge Lumb expressly rejected the approach of treating 25% of damages as the ordinary or expected deduction:

> Where practitioners often appear to have fallen into error is to assume that the success fee will always amount to 25% of the damages.

That matters because the 25% figure is a cap on the recoverable success fee, not a tariff. If the success fee calculated by reference to reasonable base costs and litigation risk produces a lower figure, that lower figure is the proper deduction. If no sufficient details of solicitor and own client base costs are produced, the court cannot carry out the calculation at all and no success fee should be deducted [5].

The judgment also identifies a related judicial error: expressing the success fee as a percentage of damages rather than assessing the risk of losing the case. The court referred in that context to the appeal decision of Duffield v WM Morrison Supermarkets Ltd [2025] EXCC 35 when contrasting percentage-of-damages reasoning with the correct focus on litigation risk [6].

2. The Court Was Concerned by the Charging Model

The schedule of solicitor and own client costs claimed £13,316 in profit costs, based on 73.1 hours of recorded time across 18 different fee earners. The CFA and risk assessment applied a 100% success fee. Because 100% of £13,316 exceeded 25% of the £10,000 damages, the solicitors sought the capped figure of £2,500 [15].

District Judge Lumb was sceptical that even on a solicitor and own client indemnity basis those costs could reasonably have been incurred or be reasonable in amount. He also considered the 100% success fee "obviously too high", and directed the solicitors to lodge the complete file for inspection and assessment [16].

The court's wider concern was that some charging models may be structured so that the 25% cap is reached whatever success fee percentage the court ultimately considers reasonable. At [7], the Judge referred to:

> a disturbing trend amongst some solicitors to sign clients up to hourly rates which are significantly higher than the guideline hourly rates provided by the SCCO

and to claim time "far in excess" of what could objectively be regarded as reasonable. The effect is to inflate the multiplicand in the success fee calculation, making it more likely that the 25% cap will be reached.

That observation is the heart of the judgment. The issue was not simply whether a solicitor may charge a child client a success fee. The issue was whether the court should accept a charging structure which appeared to condition the litigation friend to expect 25% of the child's damages to be deducted as the norm.

3. Informed Consent Was Not Established

The litigation friend's witness statement was a significant problem. District Judge Lumb found that it was clearly a template statement prepared by the solicitors, not in Ms Lewington's own words, and was to be viewed with caution because its contents were self-serving for the solicitors in relation to the funding model and ATE insurance [18].

The Judge also found that Ms Lewington did not really understand the statement, its meaning or its effect. More importantly, she had been conditioned to expect that 25% of Bradley's damages would be deducted for the success fee as the norm [18].

That finding mattered because, applying Herbert v HH Law Ltd [2019] EWCA 527, the court carried out a summary assessment on the indemnity basis of the reasonably incurred and reasonable solicitor and own client costs [25]. The judgment is therefore a useful reminder that a signed template witness statement will not necessarily prove informed consent. In infant approval hearings, the court is not merely rubber-stamping the litigation friend's statement. It is protecting the child's damages.

4. Reasonable Base Costs Were No More Than £3,000

The court found that the case was "always a very straightforward Occupiers Liability personal injury claim" [10]. Liability was admitted at the start. At the time of instruction, Express Solicitors knew that the essential work was to obtain and serve a medical report, negotiate settlement and prepare a written advice for the court [10-11].

The contractual rates in the CFA were £345 per hour for a Grade B fee earner and £235 per hour for a Grade D fee earner. The 2023 guideline hourly rates were £218 and £126 respectively. District Judge Lumb held that none of the CPR 44.4(3) factors justified charging beyond guideline rates for such a straightforward matter [26-27].

The Judge concluded that the case could and should have been run by a Grade D fee earner with supervision from a Grade B fee earner. Reasonable time was assessed at 15 hours Grade D and 2 hours Grade B. Even giving the receiving party the benefit of doubt on the indemnity basis, base costs should have been no more than £3,000, which was itself higher than the guideline-rate total of £2,326 [27].

5. The Proper Success Fee Was 11%, Not 100%

The court rejected the 100% success fee. A 100% success fee corresponds, on the traditional ready reckoner, to a 50% prospect of success. That was wholly unrealistic on the facts. The prospects of success were "about as close to 100% as there could be" [28].

Allowing for the minimal risks involved, and for the deferment of payment until the conclusion of the case, District Judge Lumb assessed the realistic prospects of success at 90%. Applying the ready reckoner, that produced a success fee of 11%. The resulting success fee was therefore:

£3,000 x 11% = £330 plus VAT [28].

This was a dramatic reduction from the £2,500 success fee sought. The calculation illustrates why the 25% cap must not be treated as a shortcut. In a low-risk claim, the true success fee may be a small fraction of the capped figure.

6. The ATE Premium Was Not Reasonably Incurred

The ATE premium was also disallowed. The issue was whether taking out ATE insurance was a reasonable expense for the litigation friend to incur on the child's behalf [29].

District Judge Lumb asked what risk there was to insure against. The solicitors' own client profit costs were covered by the CFA. The claim handlers had told the litigation friend that a court hearing was necessary, so there was no real risk of failing to recover the court issue fee. They had also told her to instruct solicitors to obtain a medical report, and all disbursements were paid by Greene King as part of the settlement. The only possible adverse costs risk was failing to beat a Part 36 offer, but given that court approval was always required, the Judge considered that risk "practically non-existent" on these facts [29].

The premium, calculated at 10% of damages plus IPT, was therefore not a reasonable expense. District Judge Lumb added that if Duffield meant that any risk always made ATE reasonable, which he doubted, he respectfully disagreed [29].

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Practical Implications

For Costs Lawyers

1. Start with the calculation, not the cap. The correct approach is to identify reasonable solicitor and own client base costs, apply a success fee percentage justified by the litigation risk, and only then apply the 25% cap if required. The cap is a maximum, not the normal deduction.

2. Require evidence of base costs. Without sufficient details of solicitor and own client base costs, the court cannot calculate the success fee. A bald assertion that 25% is payable should not be enough.

3. Scrutinise the multiplicand. High contractual rates and excessive time can inflate the base costs figure and drive the calculation towards the cap. In low-risk, low-complexity claims, the court may assess reasonable base costs far below the solicitor's claimed figure.

4. ATE premiums need a real risk analysis. The relevant question is not whether ATE insurance exists or is commonly taken out, but whether it was reasonable in the particular case. Where liability is admitted, disbursements are agreed and court approval is inevitable, the premium may be hard to justify.

5. Informed consent must be real. A template litigation friend statement is unlikely to be enough if the client does not genuinely understand the charging model. The court will look behind the paperwork where the deduction is from a child's damages.

For Litigation Practitioners

1. Infant approval hearings are protective hearings. The court's role is not confined to approving the settlement figure. It must also consider whether expenses and deductions from damages are reasonable and in the child's interests.

2. Do not present 25% as inevitable. Client care material, witness statements and oral advice should make clear that 25% is a cap, not a fixed outcome. Conditioning a litigation friend to expect that deduction as the norm risks serious judicial criticism.

3. Risk assessments should reflect the case as known at the time. A 100% success fee needs a genuine 50% risk of losing. It will be difficult to justify where liability has been admitted, the claim is procedurally straightforward and the only substantial work is medical evidence and settlement approval.

4. Hourly rates should fit the claim. In straightforward child personal injury claims, guideline hourly rates and appropriate delegation will be central to any solicitor and own client assessment.

5. The SRA warning notice is now part of the landscape. The judgment expressly links these issues to the January 2026 SRA warning notice on no-win, no-fee and other fee arrangements. Practitioners should expect courts to be alert to charging structures that appear to serve the solicitor's commercial interests over the client's.

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Conclusion

Spicer v Greene King is a practical and important County Court decision on deductions from children's damages. Its central message is straightforward: the 25% cap on CFA success fees is not a tariff. The success fee must be calculated by reference to reasonable base costs and the real risk of losing the case. In this claim, that produced a deduction of £330 plus VAT, not the £2,500 sought.

The judgment is also a warning about ATE premiums in low-risk child claims. Where liability is admitted, the opponent has accepted the need for a medical report and the disbursements are paid as part of the settlement, the court may find that there is no meaningful risk to insure against.

For costs practitioners, the wider significance lies in the court's willingness to interrogate the solicitor and own client costs behind a proposed deduction from damages. Inflated base costs, high hourly rates, template evidence and assumptions that a litigation friend has accepted a 25% deduction will all attract scrutiny. The protective jurisdiction in infant approval hearings remains real, and Spicer is a useful authority for resisting automatic or poorly evidenced deductions from children's awards.

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Citation: Bradley Spicer (A Child Proceeding by His Mother and Litigation Friend Jessica Lewington) v Greene King Brewing and Retailing Limited [2026] EWCC 18

Full judgment available at: BAILII

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