The abolition of costs shifting of additional liabilities consequent upon the LAPSO reforms gave rise to confusion as to how far it was permissible to order payment of additional liabilities out of the protected party’s fund. Part 21.12 and 46.4(2) have been amended to address this issue.
There are three criteria:
- The settlement must be less than £25,000.
- It must relate to a child.
- The damages must be for personal injury.
The amendments to CPR 46.4 mean that the costs of the child can now be summarily assessed. The amount of an additional liability for a CFA or DBA is capped at 25% (as per the existing law). There has to be an assessment of the costs before the protected party’s solicitors seek a payment out of the fund.
Amendments to PD 21 require solicitors to file a witness statement where they seek payment out under a DBA or CFA and that the witness statement is accompanied by:
- A copy of the CFA or DBA.
- The risk assessment by reference to which the success fee was determined.
- The reasons why the particular funding model was selected.
- The advice given to the litigation friend regarding funding arrangements.
- Details of the costs recovered or fixed costs recoverable by the child or protected party.