Oliver Ingham Successful in Landmark Supreme Court Appeal in Hirachand v Hirachand

18th December 2024

Oliver Ingham

3PB Barristers'  (3 Paper Buildings) specialist chancery and property barrister Oliver InghamOliver InghamCall: 2015 has been successful in a landmark Supreme Court Appeal in Hirachand v Hirachand, bringing an end to the Recovery of CFA Uplifts in Inheritance Act 1975 Litigation.

The Supreme Court has today handed down judgment in the case of Hirachand v Hirachand, allowing the Appellant’s appeal and overturning the Court of Appeal’s earlier decision. The ruling represents a significant clarification in Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”) claims regarding whether success fees under Conditional Fee Agreements (CFAs) can form part of a claimant’s award as “reasonable financial provision.”

The appeal centred on a core issue: whether a CFA success fee, which is not recoverable under a costs order as per section 58A(6) of the Courts and Legal Services Act 1990, can nonetheless be treated as part of a claimant’s financial needs when determining maintenance-based awards under the 1975 Act. The Supreme Court unanimously held that it cannot.

Background to the Case

The appeal arose from a claim brought under the 1975 Act by the deceased’s estranged daughter, who sought financial provision from her late father’s estate, which had been left entirely to her mother. The daughter, unable to afford legal representation, entered into a CFA with her solicitors, which included a substantial success fee contingent on her claim succeeding. At first instance, the High Court awarded her a sum including an element to cover part of the success fee, citing her financial needs and inability to fund litigation otherwise. The Court of Appeal upheld this decision, reasoning that the success fee could be treated as a financial need.

The Supreme Court’s Judgment

The Supreme Court firmly rejected the inclusion of success fees in an award under the 1975 Act, reaffirming the clear public policy underpinning section 58A(6) of the 1990 Act. Lord Richards, delivering the unanimous judgment, held that success fees remain part of the costs of litigation and cannot be artificially incorporated into a substantive award for “reasonable financial provision.” To do so would undermine the costs regime, create incoherence in civil litigation, and subvert the purpose of section 58A(6), which was enacted following the Jackson reforms to prevent recoverability of success fees.

The Court noted the serious practical implications of including success fees in 1975 Act awards, particularly in undermining Part 36 offers and incentivising disproportionate litigation costs. It also decisively distinguished the case from financial remedy proceedings under the Matrimonial Causes Act 1973, where the costs regime is entirely different and does not apply the principle that “costs follow the event.”

To read the full Supreme Court judgment, please click here.

Why This Decision Matters

This ruling restores certainty to the funding landscape for 1975 Act claims. The decision ensures consistency in civil litigation by upholding the long-standing principle that litigation costs—including success fees—are governed solely by the costs regime and cannot be included in substantive relief. To have decided otherwise would have created a unique and untenable exception for 1975 Act claimants, putting defendants under immense pressure to settle claims irrespective of their merits.

Had the appeal been unsuccessful, it would have dramatically shifted the risks of CFA-funded litigation, allowing claimants to recover success fees from estates and placing defendants in an impossible position. As the Court observed, such an outcome would have undermined carefully established public policy and increased the potential for disproportionate awards.

Representation

Brie Stevens-Hoare KC and Cameron Stocks (Gatehouse Chambers), alongside Oliver Ingham (3PB Barristers), acted for the successful appellant instructed by Martin Oliver, Katie Alsop and Danielle Pawson at Wright Hassall LLP. Oliver was led in this case by Brie Stephens-Hoare KC at both the Court of Appeal and Supreme Court.

Looking Ahead

This landmark decision ensures a fair and balanced approach to contentious probate claims under the 1975 Act while reaffirming the importance of the Jackson reforms in controlling litigation costs. It highlights the court’s continued commitment to achieving justice within a coherent and principled framework.

If you wish to contact or instruct Oliver, please email Practice Director David Fielder or telephone 020 7583 8055.