– Wood (Litigation guardian of) v. Wood, 2013 PESC 11.

The plaintiff was a minor when she suffered a brain injury in an MVA. The parties reached a settlement by mediation and the plaintiff’s litigation guardian sought court approval of the settlement. The settlement was approved, however a sealing order and solicitor-client costs remained outstanding.

The plaintiff’s litigation guardian sought an order under Rule 7.08, the parens patriae jurisdiction of the court. The court commented that counsel should treat Rule 7.08(5) as a minimum requirement and consider filing “any other material relating to any relevant issue to assist the court to conclude whether or not the settlement is in the best interests of the person under disability.”

The parties requested a sealing order, but the court refused the order, stating that there was insufficient evidence to support overturning the presumption of open courts. The burden of displacing this presumption rests with the party applying for the publication ban.

The lawyer’s fee was a contingency-based agreement, giving counsel 25% of the gross value of the settlement, less disbursements. The court stressed that contingency- based arrangements should not be the default fee arrangement, and that a contingency percentage should not be applied to costs. The court noted that it is essential that the lawyer negotiate a separate amount for costs and suggested brackets for contingency agreements, being: 15-20% to the end of discovery; 20-25% if the matter settles at mediation; and, 25-30% (up to 33.3%) if the matter settles at trial or after trial.