Do I need to enter into a new CFA when my client loses capacity or when new Litigation Friend is appointed?
The Court of Appeal has upheld the decision of both Master Rowley (costs judge) and Jay J on appeal to disallow additional liabilities in the form of success fees (for both solicitors and counsel) and ATE premium claimed in the sum of £1,078,972.72.
The Law Society’s Model Form CFA contains a specific clause providing that “The parties acknowledge and agree that this agreement is not a Contentious Business Agreement within the terms of the Solicitors Act 1974.”. It was argued by the solicitors in this case that even absent this specific clause (as was the case here) any CFA which provides that no fees are recoverable in the event of failure, cannot be a Contentious Business Agreement within the meaning of s59 Solicitors Act 1974
The Court of Appeal has upheld the decisions of District Judge Bellamy (first instance) and Soole J (on appeal) that a 100% success fee in a low value personal injury claim which was fixed without any reference to the actual risk involved amounted to a cost of “an unusual nature or amount” under CPR 46.9(3)(c).
Managing a client’s expectations in litigation can be difficult. Where there is no CFA, the client has the privilege of being able to ignore his/her solicitors’ advice, holding out for whatever result they desire, however unrealistic, or simply having their day in court. However, what can you do about a client who refuses to accept your advice about making a settlement offer when acting under a CFA?
Court of Appeal addresses arguments relating to defective, co-existing and implied retainers, as well as deed of rectifications relating to conditional fee agreements.