REUTERS | Russell Cheyne

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.

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REUTERS | Yves Herman

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.

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CPR 3.8 provides that any sanction arising from a litigant’s failure to comply with a rule, practice direction or court order will have effect “unless the party in default applies for and obtains relief from the sanction”. In Boodia v Yatsyna, the Court of Appeal confirmed that this does not fetter the court’s ability to grant such relief of its own motion.

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On behalf of the Practical Law Dispute Resolution team, we would like to extend a heartfelt thank you to all our bloggers for their excellent contributions to the blog this year and to you for reading. We wish you a joyful festive period and a happy, healthy and safe New Year.

The Practical Law Dispute Resolution blog will resume in January. Until then, should you find yourself short of legal reading over the holiday period, why not pick up our Article, Practical Law Dispute Resolution: what to expect in 2022.

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For all the costs reform we have seen over the past two decades, there remains plenty of scope for more, and the Master of the Rolls, Sir Geoffrey Vos, last month made clear his intention to take this forward – and potentially in a radical way.

Giving the keynote address to the Association of Costs Lawyers (ACL) annual conference in London, he revealed that he has already asked the Civil Justice Council (CJC) to “embark on a review of costs issues at all levels, including the guideline hourly rates”, as he indicated he would do when setting the new rates in August of this year.

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While the court will not strike out witness statements for non-compliance under PD 57AC (Trial Witness Statements in the Business and Property Courts) where there is sufficient compliant material, it is clear from the recent High Court decision in Blue Manchester Ltd v Bug-Alu Technic GmbH & Simpsonhaugh Architects Ltd that the court will not tolerate trial witness statements that are ambiguous as to what the witness recalls. Inappropriate use of the third person, identical wording across several witness statements, composite lists of documents for several witnesses or a glib approach to the witness’s confirmation of compliance are also unlikely to be accepted by the court.

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On 22 December 2021, the CJC announced that the deadline for responding to its consultation has been extended to 10 am on 21 January 2022.

With just a few shopping days left until Christmas, busy practitioners and elves alike could be forgiven for overlooking the Civil Justice Council’s consultation on the Pre-Action Protocols (PAPs) which is due to close at 10am on 24 December 2021.

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Indemnity costs are always a hard fought battle, generally following hard won litigation. It is obvious why: the indemnity basis means a receiving party is not held to their approved budget and is therefore likely to recover significantly more than on the standard basis (Burgess v Lejonvarn, paragraphs 89 – 93).

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My April 2020 blog examined the extent to which costs orders, made in favour of losing parties, could be set off or enforced against costs orders, damages and interest awarded in favour of winning parties in cases proceeding within the Qualified one-way costs shifting (QOCS) regime (Section II of CPR 44), The rationale behind QOCS, which were implemented on 1 April 2013, was to lower the burden falling on defendants if costs ceased to be recoverable from losing claimants, rather than the case where defendants continued to be responsible for success fees and after the event insurance premiums when the claimants were successful.

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