|
Where a solicitor had made a professional move, taking to her new
firm a client on a conditional fee agreement, the CFA could be
lawfully assigned to the new firm, since the relationship between
the client and solicitor had involved personal confidence, and what
drove events in the instant case was the trust and confidence that
the client had in the solicitor based on her uninterrupted conduct
of his case.
LEGAL ADVICE AND FUNDING - CIVIL PROCEDURE
[2006] EWHC 151 (QB)
QBD (Rafferty J) 21/2/2006
References: LTL 1/3/2006 (Unreported elsewhere)
Document No.: Case Law - AC0110485
2. Bonnie Louise Woods v.
Sheila Chaleff & Others (2002) SCCO (Costs Judge Master Rogers) 30th
April 2002.
Allen and Overy produced
Bills of £191,000 on the basis that they had entered into CFA on 25th May
1999. Costs Judge Rogers held that the CFAs did not comply with the
Conditional Fee Agreements Regulations 1995 and inter alia failed to state
that the required information had been given to the client. The Costs
Judge held that a CFA which did not comply with the relevant regulations
was not enforceable.
3. D M Pratt v DDM Bull Taunton CCT (HHJ Cotterill) 11/9/02 [Transcript not yet
available]
In challenging the validity of a CFA the Defendant had to do more than
merely assert points in dispute as to compliance. The Claimant's
Solicitors refusal to disclose the CFA did not raise a valid concern as it
was a privileged document.
4. Worth v McKenna (LSG
7/11/02 p1/3).
HHJ Evans ruled that the
CFA should not be disclosed unless there was evidence of
non-compliance: questions over the indemnity principle could be
answered by examining the Certificate on the bill.
5. P Jorgensen
v. J D Wetherspoon plc (Stratford upon Avon County Court)
The DJ refused an
application for a CFA to be declared invalid on the grounds that a
non qualified agent had explained its terms (see English v. Clipson) The
Agent was an agent of the Solicitor.
6. In English v
Clipson (Peterborough County Court)
The DJ held that the TAG
approach of sending agents employed by an associated company Accidents
Investigations to explain the terms of the CFA did not comply with the CFA
legislation. As a result the CFA was invalid. However, in...
7. The TAG (The Accident Group) Test Cases (Heard by Senior
Costs Judge on 29 and 30 October 2002).
The Senior Costs
Judge made the following findings:
- A "legal representative" may
be an individual, a firm or a recognized body. In this context that
means the person entering into the CFA with the client.
- The provisions of Section 27(2) (e) CLSA
1990 are a statutory recognition of the custom that unadmitted staff
may appear at certain less formal court hearings. These provisions do
not of themselves make a TAG representative a legal representative.
- Delegation by the legal representative
is permissible.
- The law relating to delegation and
agency does not restrict the class of persons to whom tasks may be
delegated but the principal will be vicariously liable for the
delegate’s failures.
- There can be delegation by one legal
representative to another.
- There is nothing in the legislation
which prevents delegation of the Regulation 4 task to a properly
appointed agent. The essential question is one of quality, i.e. was
there sufficient explanation given by or on behalf of the legal
representative? If the answer to that question is yes: was that
information given by a duly appointed agent? If the answer to the
essential question is no, it is immaterial who gave the explanation.
8. LK
Gliddon v. Lloyd Maunder Ltd, CJ O'Hare, SCCO, 12th February 2003
(unreported)
Costs Judge O'Hare
held that the indemnity principle does apply to work done under a CCFA and
the Claimant here had to be informed of circumstances in which he may be
liable to pay the costs of the legal representative. Such occasion was if
the Claimant defaulted in his obligation to assist the Union including
paying subs. The Solicitor had also explained the Claimant's costs free
position correctly.
9. Anthony
Cowley v. Merseyside Regional Ambulance Service NHS Trust [2003] EWHC 250
(Fam).
The Claimant
instructed three firms of solicitors to pursue his PI claim, the first and
last firms acting under CFAs. The first CFA was terminated before 1st
April 2000. The Claimant sought to recover the success fees under both
CFAs. It was held by Mr Justice Sumner that such an arrangement was caught
by the Access to Justice Act 1999 (Transitional Provisions) Order 1999 and
because a CFA had been in existence before 1st April 2000, no success fees
would be payable.
10.
The Claims Direct Test Cases
Tranche 1 (Whether amount payable is
a premium and amount of premium recoverable) can be found here: http://www.courtservice.gov.uk/View.do?id=1275
with the Appeal judgment here: http://www.courtservice.gov.uk/View.do?id=1549
Tranche 2 (Referral fees and related
issues) is here: http://www.courtservice.gov.uk/View.do?id=1953
2. The TAG test cases:
Tranche 1 ( Is the TAG representative
the legal representative?) is here: http://www.courtservice.gov.uk/View.do?id=1438
the appeal jmt (which dealt with appeals on 6
cased including the Pratt and Worth cases referred to in my previous
email*): http://www.courtservice.gov.uk/View.do?id=1752
Tranche 2 (compliance with CFA
Regulations. Recoverability and extent of ATE premiums) : http://www.courtservice.gov.uk/View.do?id=1740
- the 2nd jmt (concerning
"swing premium"): http://www.courtservice.gov.uk/View.do?id=1918
Tranche 3 (Sufficiency of
explanations of CFA terms given to intending Claimants) has not yet been
decided.
The links are to useful summaries of the
judgments where you will find further links to the full judgments.
|
