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Answer: when a claimant, who is a party to “no win no fee” conditional fee agreement (CFA) with his solicitor, dies before a “win” in litigation is achieved. In that eventuality, the “death” clause, which is a feature of most CFAs, takes effect: the CFA is terminated immediately and the solicitor is entitled to claim “basic costs” (as defined) for work undertaken to that date, irrespective of the stage which the litigation has reached. It follows that, although the much trumpeted expression “win or lose the case, it won’t cost you a penny” will be true in the sense that the claimant will pay nothing, that is only because he or she is no more: it will be for the personal representatives to settle the affairs of the deceased claimant out of his or her estate if there are sufficient funds available, for example from the sale of the family home, in order to do so.

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REUTERS | Henry Nicholls

A proposed redraft of the much-criticised 2013 regulations governing damages-based agreements (DBAs) has recently been published and has been broadly welcomed by practitioners. The redraft is a joint effort by Professor Rachael Mulheron of QMUL and Nicholas Bacon QC, who were invited by the Ministry of Justice (MoJ) to conduct an independent review of the 2013 Regulations. This followed the government’s recognition, in its post-implementation review of Part 2 of LASPO, that the current version “would benefit from additional clarity and certainty”, a comment which some may say displays the art of understatement. Continue reading

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In Paralel Routs Limited v Fedotov, HHJ Paul Matthews, who was sitting as a judge of the High Court, highlighted the importance and necessity of procedural rules being explained properly. This case involved a defendant, a Russian national, who at the time of trial was in prison in Moscow and did not give live evidence, and another Russian national claiming to have an interest in the claimant’s claim. Continue reading

REUTERS | Toby Melville

On 17 October 2019, at the invitation of the Ministry of Justice (MoJ), Professor Rachel Mulheron of Queen Mary University of London and Nicholas Bacon QC delivered their initial draft Damages-based Agreement Regulations 2019 for England and Wales, pursuant to their independent review of the DBA Regulations 2013. The DBA Reform Project is now seeking feedback from practitioners and other stakeholders before 15 November 2019. Continue reading

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Last summer, a ten day trial in which I was involved was adjourned. The judge recused himself after one of the party’s solicitors sent an email to the judge’s clerk enclosing a link to a website containing sensationalist (but true) information about one of the counsel involved in the case. The subsequent successful wasted costs application cost the solicitor’s firm in excess of £100,000. It was a salutary lesson in how careful we as lawyers need to be in our electronic communications. It is all too easy to fire off an email or post on social media without thinking through the professional consequences of doing so. Continue reading

REUTERS | Gary Hershorn

According to Pythagoras: “The oldest, shortest words – ‘yes’ and ‘no’ – are those which require the most thought.” Litigation funders would wholeheartedly agree when deciding whether or not to fund a case. As the largest funder in the UK by volume of claims funded, Augusta has made such decisions more often than most. However, we need to be confident in a case before we decide to provide non-recourse funding. Like all funders, we look at cases (or portfolios of cases) on their individual merits and generalities do not always apply. Yet given the number of cases we have seen, and the number of decisions we have made, we are in a good position to shed some light on the rationale behind “yes” and “no,” and why funders ask the questions they do. Continue reading