The law firm acting for Iraqi civilians who successfully claimed that they had been mistreated by British troops has failed in a bid to have the 100% success fee for the test cases applied to all the other cases stayed pending their determination.
In Iraqi Civilians v Ministry of Defence [2019] EWHC 3088 (QB), the 609 claims were divided into three schedules, the first two of which proceeded to a trial at which the civilians were largely successful. The lead schedule 3 claims were also listed for trial but were adjourned following the court’s direction to engage in ADR. The great majority of the remaining claims have since been resolved without service of particulars of claim.
Under clause 8 of the conditional fee agreement (CFA) each claimant entered into with Leigh Day, the success fee was 33% if the case resolved without needing to serve particulars of claim, 67% if it concluded between service of the particulars and of the defence, and 100% thereafter.
The claimants contended that each reference to “the case” in this clause should be interpreted as referring generically to any lead case or cases, making 100% applicable to all the cases, subject to surmounting the hurdle of reasonableness. The defendants said for those individual claimants who won without serving particulars, the success fee should be 33%.
The claimants argued that the success or failure of any individual stayed claim would be liable to hinge upon the determination of the handful of lead cases which were pleaded out.
Mr Justice Turner said: “I do not doubt that, as a matter of fact, it was overwhelmingly likely that any given Iraqi civilian with sufficient prospects of success would find himself to be one member of a tranche of claimants. Nevertheless, the terms of the individual CFAs do not mandate this and so each individual CFA was capable of having full contractual effect even if there were no such group.
“The fact that any given CFA was able to operate as a standalone contractual document tells against the suggestion that the levels of success fee as therein defined fell to be determined by the stage of the pleadings in other cases, the existence of which was not legally essential to the efficacy of that individual CFA.”
A “further difficulty” was that the reasons given in the schedule to the CFA for setting the success fee at the level cited made no reference to a link with the progress of any lead cases – quite the opposite, in fact, the judge found.
He added: “It would have been simplicity itself to have drafted the agreements to provide for that which Leigh Day now seek to achieve through what I have found to be an impermissible level of interpretative creativity. I accept that the individual claimants under the CFAs would not be required to pay Leigh Day more in costs than had been recovered from the defendant, but this factor does not entitle me to depart from what would otherwise be the clear and natural meaning of clause 8.
“It must follow from my analysis that I reject the interpretation which Leigh Day seek to put on clause 8 of the CFAs and conclude that the reference therein to the pleading stages apply to the individual pleadings covered by each such CFA.”
Richard Hermer QC and Benjamin Williams QC (instructed by Leigh Day and Co) for the claimants, with Simon Browne QC and Paul Joseph (instructed by Government Legal Department) for the defendant.