A High Court judge has ruled that a non-freezing cold injury (NFCI) sustained by a soldier during survival training cannot be classified as a ‘disease’ within the meaning of the Civil Procedure Rules (CPR). The decision will have a major impact on the level of success fees earned by lawyers in such cases.
The soldier had to be discharged from the army due to the injury sustained during cold weather exercises in Norway. He successfully sued the Ministry of Defence (MoD) which agreed to pay him £75,000 damages. The legal costs payable by the MoD were agreed at £68,000 subject to the issue of an appropriate success fee.
Lawyers who represented the soldier argued that his NFCI could properly be described as a disease within the meaning of Section V of Rule 45 of the CPR and that a 62.5% success fee was therefore payable. The MoD argued against that proposition and that a success fee of only 25% was recoverable.
Ruling in favour of the MoD on the issue, Mr Justice Males said: ‘NFCI is not a disease within the meaning of the CPR 45 and, accordingly, the claimant’s lawyers are not entitled to a success fee calculated in accordance with Section V of that rule.’
Patterson v Ministry of Defence. Case Number: QB/2012/0267