Redwing entered into a CFA with its solicitors which provided if Redwing lost the enforcement proceedings, it would only be liable to pay the other side’s costs. If it won, it paid the solicitors’ basic charges, disbursements, success fee and the ATE insurance premium. The success fee was 100% of the solicitors’ basic charges. The next day enforcement proceedings were issued. However, notification of the CFA was not given to Wishart until fifteen days later. Redwing then took out ATE insurance.

Two days after notification of the CFA, Wishart paid Redwing the undisputed amount of the claim. Redwing was successful at enforcement. After reserving judgment because of the CFA and ATE issues, the Judge awarded Redwing its costs on a standard basis. Although there was no evidence that it was unable to pay for its own costs of and occasioned by the enforcement proceedings, as Redwing may have had cash flow problems, it was not unreasonable for it to enter into a CFA and obtain ATE insurance. However, there was no good reason why notification of the CFA did not take place when the Claim form was issued.

The fact that Redwing pursued the summary judgment application suggested it believed it had a good chance of succeeding. Accordingly, Judged at the time when the CFA was entered into, there was little or no chance that Redwing would actually wholly fail in the proceedings. The Judge was of the view that a 20% uplift of the basic solicitor’s charges was reasonable in the circumstances in which Redwing was judged at the time when the CFA was entered into virtually bound substantially to win its Claim. In relation to the ATE insurance, at the time it was entered into, the risk of losing was sufficient low to undermine the reasonableness of imposing anything near 100% of it on Wishart. Therefore it was only reasonable to make Wishart pay 20% of the premium. In making this assessment, the Judge took into account the fact that part of Redwing’s costs were incurred before it formally notified that a CFA was in place.