Infant approval hearings are just as important as any other hearings. Whilst most are straightforward (and can be over before you’ve even had a chance to settle in your seat), some can be more complex (where liability is denied and medical evidence is not finalised). That’s just in the County Court, you have high value/serious/complex in the High Court.
My very first infant approval hearing was when I was in employed practice and before I became a fee earner (some time in 2013) just after the Jackson Reforms when deductions were being sought from the Claimant’s damages. It was difficult then to explain to the Court that you wanted to reduce the amount of money being invested because the ‘solicitors need to cover costs which were not recoverable’.
However these deductions are necessary and the submissions must be made. Advocates cannot refuse to make the submission or tell their Solicitors the application for deduction was refused when they didn’t make it like one bar graduate did. Nevertheless, whilst have expeirence and knowing the correct submissions to make is important, much of the success falls down on the relevant documentation.
This post is to provide tips on how to maximise your deductions.
If your CFA calculates the success fee on hourly rate work, then provide a cost schedule
This is a common mistake by solicitors that are seeking a success fee and do not provide a of ‘a bill or informal breakdown‘ as per CPR 21.12(10)(f). The very nature of the success fee is to be a percentage or uplift of the time spent working on a case that had a risk. That’s exactly how success fees were calculated in a pre-Jackson world.
Nothing had changed since, other than it can no longer be recovered from a Defendant and that there is a cap on how much of the damages (and what type of damages) the success fee can be deducted from. The common methods of demonstrating the costs are:-
- informal print off with the file’s WIP, showing which fee earner did a task, what it was and how many units for their hourly rate
- N260
Some firms do prepare a bill of costs. Part 21 does seems to acknowledge that such work can be disproportionate. Nevertheless, without it you cannot demonstrate what the reasonable costs are in order for the Court to determine the success fee.
There are some CFAs that now define the basic costs as the FRC that are recoverable. Whilst this restricts the amount of the success fee (for example 25% of Stage 1, 2 and 3 MOJ costs), it is less onerous to prepare and (providing the CFA adequately sets out the likely fixed costs at each stage) will increase the reasonableness of the deduction.
Risk assessments should not be generic
There will be accidents such as passengers in RTAs that will have very little risk, but there will be some. Those risks factors are likely to be generic. That does not mean however providing a copy/paste risk assessment will sit well with the Court. Whilst risk assessments should still contain the generic risk factors, they should be tailored into an actual risk assessment.
Talk about the specific characteristics of the case and apply the generic factors to them. The Court is more inclined to find that the risk assessment has been appropriately considered. Tick box exercise will lead to an unfavourable assessment of the risk by the Court.
There are some heavily relied on risk factors that are not so much of a risk. Part 36 consequences and adverse costs orders used to be one because QOCS was so limited that any cost risk fell only on the Claimant’s damages and only if the damages were awarded at trial. However, following Ho v Adelekun a change in the CPR led to the costs also being a source of the Defendant’s costs. Remember this only applies to cases where they were issued after 6th April 2023.
Shortfall contribution is wholly different from a success fee – but could be worth the focus
A shortfall approach is a lesser-utilised approach even though all Conditional Fee Agreements will include provisions that state that the Claimant is liable for any shortfall. The case of Belsner v Cam Legal Services Limited [2022] EWCA Civ 1387 is one of the main authorities where it was determined what was informed consent to a shortfall contribution from damages.
You must demonstrate that there is a shortfall between the costs recovered and the costs incurred. To do this, the Court needs to assess the work you have undertaken was reasonable and proportionate. This must be based on hourly rates and cannot be an informal cost schedule because that only applies to success fees. Whilst you can ask the Court to dispense with detailed assessment as being disproportionate, you must still have the costs assessed.
In principle, this should be easier to recover because there is no need to consider a risk assessment or a percentage. As long as you agree to limit the deduction to 25% of damages like a success fee there should be no good reason not to allow it. I do find some Judges are disconcerted by a shortfall request and describe it as a ‘backdoor’ success fee in disguise.
ATE Premium
This can be deducted separately from the success fee. It is an expense under CPR 21.12 which the Litigation Friend has incurred. Too many focus on Part 36 and adverse costs when really the big cheese is the disbursements which are the Litigation Friend’s responsibility. If the Litigation Friend is bearing the risk and costs for the benefit of the child then it is reasonably incurred.
Make sure you prepare a detailed attendance note to explain why the ATE was needed. Is there a reason why you did not wait and see for a decision on liability? Is there a better premium if taken out from the outset? This information is really important for the Court to justify the payment out under CPR 21.12.
Information
AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026.
From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.