On 15 October 2021, the Court of Appeal upheld the first instance decision confirming that the success fee (or uplift) for a conditional fee agreement may be recoverable as part of the lump sum awarded under the Inheritance (Provision for Family and Dependants) Act 1975 (the “1975 Act”) to the claimant.
It is well established that pursuant to Section 58(A)(6) of the Courts and Legal Services Act 1990 (as amended by Section 44 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012), a success fee cannot be recovered by way of a costs order. However, in this case, the Court of Appeal held that a success fee is capable of being a ‘debt’, the satisfaction of which is in whole or part a ‘financial need’ within the meaning of Section 3(1)(a) of the 1975 Act. For this, the court may use its discretion to make provision on a needs-based calculation. Turning to the underlying facts in this case:
- The claimant to the 1975 Act claim was the estranged adult daughter of the deceased, who had been left no provision from her father’s estate;
- The claimant suffered from mental health problems, leaving her unable to work;
- The defendant to the claim was the deceased’s widow who had been left the entirety of her husband’s estate; and
- The defendant was in her 80’s, with poor deteriorating health. She was moved into a care home after the proceedings were issued.
