While the auditor of expenses initially allowed the success fee, it was held by the sheriff that a success fee was not a sum which was incurred for conducting the cause and thus not a proper expense of process as was recoverable under expenses rules. As part of the solicitors’ account, the appellant sought reimbursement of the success fee. By interlocutor dated 10 July 2018, the sheriff pronounced decree of absolvitor and awarded the appellant expenses on a party and party basis up until 26 October 2017, and on an agent and client, client paying, basis from that date. The respondents abandoned their action after failing to lodge the necessary documentation to vouch their claim, having been ordered to do so by the court.
The latter was defined as 70 per cent of the solicitor/client fee but with the total amount being no more than 25 per cent of any damages or settlement. In January 2018, after an initial period in which she defended the action without legal assistance, the appellant engaged solicitors and accepted terms of business under which she was liable to pay outlays, solicitor/client fees, and a “success fee”.
Smith QC appeared for the appellant and MacGregor QC appeared for the respondents. The appeal was heard by the Lord President, Lord Carloway, sitting with Lord Turnbull and Lord Pentland. Under the terms of business of the solicitors she engaged, she was liable to pay them no more than 25 per cent of the settlement she won in the event of success. The appellant, Catherine Weir, was originally the defender in an action raised by Cabot Financial (UK) Ltd in which they claimed to have acquired a debt of around £7,200 owed by her to the Lloyds Banking Group.
The Inner House of the Court of Session has ruled that a “success fee” payable to the solicitor of a successful defender to a debt recovery action was not recoverable from the unsuccessful party that sought payment of the debt.