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.
The question of what costs order should follow the grant of interim injunctive relief is of obvious practical significance to parties. While costs will generally be awarded against the applicant if interim relief is refused, the costs position after a grant of relief is far less predictable. Cases can be found where judges have made costs orders against respondents, or where costs issues have been deferred until trial. Most turn on their own facts and procedural histories.
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 general principle is founded upon this, that the exigencies of mankind require that in matters of business, which may lead to litigation, men should be enabled to communicate freely with their professional advisers, and their communications should be held confidential and sacred, and that no one should have a right to their production.”
Does such a right to legal advice privilege extend to foreign lawyers, and if so, to in-house foreign lawyers that are neither said to be registered or regulated in their own jurisdiction?
Terminating any relationship can be painful. For contractual parties, an incorrect or even careless termination may result in costly legal consequences. Two recent cases highlight the development around this body of law and serve as an aide-mémoire of the principles underpinning termination under English law:
Bains v Arunvill Capital Ltd reminds parties committing remediable breaches, those which are deemed cured if remedied within a specific time period, that a mere expression of an intention to carry out (as opposed to the actual performance of) contractual obligations (and where those obligations are so apparent) will not be enough to remedy a material breach.
On Tuesday 22 September 2020, Flaux LJ (Chair of the Disclosure Working Group) published an update on the operation of the Disclosure Pilot Scheme (DPS). It was accompanied by the long-awaited publication of the Third Interim Report on the DPS, dated 25 February 2020 and prepared by Professor Rachael Mulheron (of Queen Mary University of London), who has been monitoring the DPS from its start in January 2019. The update also outlined a number of proposed amendments to the DPS, which are expected to be considered by the Civil Procedure Rule Committee at its October 2020 meeting.
The proposals arise out of the work of the Witness Evidence Working Group, set up in 2018 to consider possible reforms. The Working Group’s report was published in December 2019, and made various recommendations, including that an authoritative statement of best practice should be prepared. A draft of that statement has now been prepared by the Working Group, in the form of a draft PD 57AC and Appendix, and was published in advance of the Commercial Court’s first online seminar on 7 September 2020. The draft will be considered in due course by the Business and Property Courts Board and the Civil Procedure Rule Committee.