Practical Law

There is a fundamental difference between Conditional Fee Agreements  on the one hand, and Contingency Fee Agreements and Damages-based Agreements (DBAs) on the other hand, in that with Conditional Fee Agreements the charge is still related to the amount of work done, whereas with Contingency Fee Agreements and DBAs that is not the case.

In Higgins & Co Lawyers Ltd v Evans, the Queen’s Bench Division of the High Court held that the death clause contained in the standard Law Society Model Conditional Fee Agreement, which allows a firm to terminate the agreement on the client’s death and recover basic charges from the estate, is valid and enforceable.

In my last Dispute Resolution blog, I looked at the signature requirements for solicitors’ bills, both in relation to between the parties’ costs assessments, and solicitor and own client costs assessments. In this blog post, I consider the signature requirements relating to: Conditional fee agreements. Damages-based agreements. Contingency fee agreements.

In this piece, I look at the signature requirements of solicitors’ bills both in relation to between the parties’ costs assessment, and solicitor and own client costs assessments.

The Court of Appeal has very recently softened its approach to applications under CPR 52.30, effectively backtracking on two of its own very recent decisions. I first looked at this issue in my blog post, Appeals to the Court of Appeal after refusal of permission.

There have been a number of recent cases on whether costs should be reserved following an interim injunction granted on the balance of convenience. The starting point is that, absent special circumstances, costs will normally be reserved, as at that stage, there is no winner or loser, and the purpose of an interlocutory injunction is … Continue reading Injunctions, freezing orders and costs →

Two recent High Court decisions have emphasised that the Part 36 costs consequences will rarely be avoided. Nominal damages of £10 beat claimant’s offer of £1: full Part 36 consequences apply In Shah and another v Shah and another, the High Court upheld the decision of the County Court that the defendants should bear the … Continue reading Part 36 strictly applied →

Historically courts took a relaxed attitude to deadlines, and it may seem strange to younger members of the profession, but in my working life parties could, and did, simply decide that they were not ready for trial and would tell the court to adjourn matters. That all changed with the introduction of the Civil Procedure … Continue reading Costs deadlines: courts getting tougher →

Contingency fees provoke very different responses from lawyers, ranging from the view that they are the work of the devil, to them being the ultimate tool providing access to justice. As usual, the truth lies somewhere in between, but the direction of travel of recent senior court decisions is definitely to endorse contingency fees, which … Continue reading Are the courts favouring contingency fees? →

Challenges under the Solicitors Act 1974, by former clients in relation to their bills, have been the subject of a number of recent decisions with informed consent being a key issue.

On 8 January 2021, the Civil Justice Council (CJC) Working Group on Guideline Hourly Rates published its report for consultation on guideline hourly rates (GHRs). The consultation ends on 31 March 2021. GHRs have not risen since 2010 and the report recommends increases ranging from 6.8% to 34.8% depending on grade and location.

In this blog, I look at the situation where permission to appeal to the Court of Appeal has been refused by a single judge on the papers, and the possibilities of having that decision re-opened.

The general principles in relation to conditional fee agreements (CFAs) were set out in Part 1, where I considered “no win no fee” agreements in detail. The same principles apply to “no win lower fee” agreements.

In this first blog I look at the general principles of conditional fee agreements (CFAs), and, in particular, “no win no fee” conditional agreements. In a second blog, I look at “no win lower fee” CFAs, which are a useful and popular method of funding for commercial disputes.

The single potential benefit of damages-based agreements (DBAs) is that it is a form of out and out contingency fee agreement (see also Part 1), that is taking a percentage of damages, which is available for contentious work, and thus can be used once proceedings have been issued, in contrast to a contingency fee agreement under … Continue reading Civil litigation funding agreements: Part 2: damages-based agreements →

Many general civil litigators are unaware of the range of funding options open to clients and lawyers in such proceedings, and tend to stick limpet-like to an hourly rate, win or lose, which is deeply unattractive to most clients, and is not necessarily the most profitable method for the solicitors either.

In the last two years, there have been three significant cases involving the court’s powers in relation to litigation friends outside the field of personal injury. My previous blog post considered the first of those cases, which dealt with issues including the role and duties of litigation friends, and conflicts arising between a litigation friend … Continue reading Litigation friends: duties and procedure (Part 2) →

As will be seen below, the issue of litigation friends is dealt with in CPR 21, and covers children and protected parties. By definition, children are far less likely to be involved in litigation outside the field of personal injury as they cannot enter into contracts, except for necessities, during their minority, and thus the … Continue reading Litigation friends: duties and procedure (Part 1) →

The issue of whether an individual who has before-the-event (BTE) insurance is forced to use the solicitors nominated by the insurance company, or whether they have freedom of choice to instruct their own solicitor, is a vexed one about which I get a huge number of enquiries.

Below I report the decision of the Court of Appeal in Flynn Pharma Ltd and Flynn Pharma Holdings Ltd v Competition and Markets Authority, concerning the circumstances in which a regulator who brings regulatory proceedings and loses should pay the successful party’s costs. This raises the wider question of whether regulators should enjoy virtual immunity from … Continue reading Who regulates the regulators? →

Here I look at three recent business cases involving capped costs, including the first two cases to be tried in the capped costs list pilot scheme and one in the Intellectual Property and Enterprise Court. Both are part of the Business and Property Courts of England and Wales (B&PCs).

Here I deal with a number of decisions concerning procedural issues of filing and service in relation to insolvency proceedings. In particular, the Courts Electronic Filing System (CE-File) is a source of considerable confusion.

Fixed costs ousted by agreement In Turner v Cole, a regional costs judge held that an agreement between the parties ousted the fixed costs regime.

Qualified one-way costs shifting: defendant can set off against costs awarded to claimant In Faulkner v Secretary of State for Business, Energy And Industrial Strategy, the Queen’s Bench Division of the High Court considered the Kafkaesque issue of whether a defendant failing to set aside a notice of discontinuance could then rely on that discontinuance to … Continue reading Costs round-up February 2020 (Part 2) →

Wasted costs against expert In Thimmaya v Lancashire NHS Foundation Trust and another, a circuit judge made a third party costs order against an expert in the sum of £88,801.68 under section 51 of the Senior Courts Act 1981. The expert, who appeared for the claimant at trial, “was wholly unable to articulate the test to … Continue reading Costs round-up February 2020 (Part 1) →

Solicitors’ liens Ryanair liens case goes to Supreme Court Bott & Co Solicitors Ltd have been granted permission to appeal to the Supreme Court by the Supreme Court itself in relation to the issue of solicitors’ liens where a third party (Ryanair) deliberately sent damages to the client, and not the solicitor acting for the … Continue reading Costs, fees and 2020 changes round-up (Part 2) →

Contract providing For “all reasonable costs” meant assessment on the indemnity basis In Alafco Irish Aircraft Leasing Sixteen Ltd v Hong Kong Airlines Ltd, the Commercial Court held that a contract specifying that a party was entitled to “all reasonable costs and expenses” of litigation, in connection with preserving its contractual rights, meant that it was entitled … Continue reading Costs, fees and 2020 changes round-up (Part 1) →

Court fee remission process An application for help with fees, that is to avoid paying a court or tribunal fee altogether, or getting a reduction on the normal fee, is made on Form EX160: Apply for help with fees. The process for applying online is:

This piece does not deal with court fees themselves, but rather the principles and practices of court fee remissions and recoverability and so on, and the process of seeking remission.

Normally a solicitor/client retainer is an entire contract; see Vlamaki v Sookias & Sookias:

Charging interest on disbursements recovered from a defendant at the successful conclusion of a case (assuming disbursements paid by solicitors for the claimant) There is an overlap between this heading and the heading of this blog (and that in Part 1), in that the indemnity principle potentially applies, and the ability to recover costs from … Continue reading Charging interest on disbursements (Part 2) →

There is no inherent right to charge a client interest on anything until a bill has been delivered. The simplest and cleanest way is to deliver a disbursement–only bill with the standard wording at the bottom:

Here I look at two recent and helpful publications, and given the source of those publications, those are slightly surprising words from me!

Transfer out of Shorter Trials Scheme refused In Sprint Electric Ltd v Buyer’s Dream Ltd and another, the Chancery Division of the High Court refused the claimant permission to transfer an intellectual property claim out of the Shorter Trials Scheme. The court was satisfied that it had power to transfer the case under CPR 3.1(2) … Continue reading Civil litigation summer round-up →

In Barker v Confiànce and others, the Chancery Division of the High Court considered the issue of costs orders against parties who are minors or their litigation friends. It held that there were no special principles preventing a costs order being made and that the court must consider all of the circumstances of the case.

Insolvency and Companies Court (ICC): new ICC Interim Applications Court On 25 April 2019, the Chancery Guide was updated to include a new chapter on the Insolvency and Companies List, including information, at paragraphs 25.28 to 25.30, on the operation of the new Insolvency and Companies Court (ICC) Interim Applications Court at the Rolls Building, … Continue reading Insolvency round-up May 2019 →

Even though we have had 300 years of case law, there is still great uncertainty about the extent of solicitors’ liens, a subject which has become of much greater importance since the legalisation of conditional fee agreements and the virtual abolition of civil legal aid, as solicitors are now often acting on credit for clients … Continue reading Liens: a never-ending saga →

Can amendment amount to discontinuance? In Galazi and another v Christoforou and others, the Chancery Master considered whether the very substantial amendments made to the particulars of claim amounted to a discontinuance of the whole or part of the claim, triggering the default position under CPR 38.6(1) that the discontinuing party is liable to pay the costs … Continue reading Costs round-up March 2019 →

Opposition is growing to the government juggernaut of scrapping live courts, even for trials, with the judiciary in particular expressing its clear and certain view that austerity and cost-cutting, not access to justice, are behind the move.

In Bayliss v Saxton, the Queen’s Bench Division of the High Court held that section 285(3)(b) of the Insolvency Act 1986 did not apply to committal proceedings for contempt of court on the grounds of interference with due justice.

There has been a number of recent cases in relation to pre-action and non-party disclosures.

There have been a number of recent cases in relation to security for costs.

In an increasingly global world the issues of international and extra-territorial jurisdiction are becoming increasingly important, as a recent flurry of cases and developments shows.

Setting aside notice of discontinuance In Advantage Insurance Co Ltd v Stoodley (1) and Trinity Lane Insurance Co Ltd (2), a Queen’s Bench Division Master considered the law in relation to setting aside a notice of discontinuance.

In three recent cases, the courts have considered how to apply the proportionality test in CPR 44.3(5) in cases where damages are not the main issue, or where no damages are in issue at all.

Two recent decisions, one in the Court of Appeal and one in the High Court, considered the incidence of costs where it is less than clear who has “won”.

New Practice Direction from 25 April 2018 The new Practice Direction on Insolvency Proceedings was published on 25 April 2018 and came into force immediately.

Here is a round-up of some recent cases involving limitation.

CPR 36 is the most important, and complicated, rule in the book, and so it is not surprising that there is a torrent of cases with major issues still unresolved. Here I look at no fewer than nine recent decisions at High Court level or above.

In Saeed and another v Ibrahim and others, the Chancery Division of the High Court considered the overlap between the court’s powers to strike out under CPR 3.4 and its powers to enter summary judgment under CPR 24.

Indemnity costs guidance In Whaleys (Bradford) Limited v Bennett and another, the Court of Appeal gave guidance in relation to the correct test when considering indemnity costs. This was not in the context of Part 36.

In Percy v Anderson-Young, the Queen’s Bench Division of the High Court allowed recovery of an after the event (ATE) insurance premium of £533,017.13, overturning the district judge’s decision to cut it to £82,513.07.

In Richard Slade and Company v Boodia and Boodia [2017] EWHC 2699 (QB) the Queen’s Bench Division of the High Court, in an appeal  from the Senior Courts Costs Office, upheld the Cost Master’s finding that interim statute bills must include disbursements.

Fast track In relation to the fast track, Jackson LJ proposes no change and the only suggestion, emanating from claimant representatives, was that there should be better provision for the costs of pre-action disclosure applications as recommended by the Court of Appeal in Sharp v Leeds City Council.

This piece does not deal with the costs figures; that is for another piece. As part of his Supplemental Report on Fixed Recoverable Costs, which will be considered by the Lord Chief Justice, Master of the Rolls and the government, Jackson LJ has proposed a new intermediate track.

CPR 36 is the most important rule in the book.

Today Jackson LJ’s Supplemental Report on Fixed Recoverable Costs was published and is available here. This will now be subject to consultation by the government, and so these are proposals at this stage. Whatever comes in is likely to be on 1 October 2018.

A voluntary two year capped costs pilot scheme for High Court cases valued between £100,000 and £250,000 is due to begin imminently in the London Mercantile Court and the Mercantile, Technology and Construction and Chancery Courts in Manchester and Leeds District Registries.

The Master of the Rolls, giving the Lord Slynn Memorial Lecture on 14 June 2017, had this to say about the effect of electronic filing and online courts:

It is accepted by solicitors and the Bar alike that, as fixed fees are introduced, solicitors become more reluctant to instruct counsel, on the basis that they feel that they are spending their own money, rather than incurring a disbursement, which is then recoverable from the other side in the event of success.

The general election has caused the Prisons and Courts Bill to be lost, as there was insufficient time for it to get through all of its Parliamentary stages before the dissolution of Parliament at midnight on 2 May.

Practitioners will be familiar with the basic concept of Part 36 and the consequences that flow from that rule.

The horizontal and vertical extension of fixed recoverable costs is being considered by Jackson LJ, whose report is due by 31 July 2017.