0370 270 6000

already registered?

Please sign in with your existing account details.

need to register?

Register to access exclusive content, sign up to receive our updates and personalise your experience on brownejacobson.com.

Privacy statement - Terms and conditions

Moore v Andrews, Bournemouth County Court, 8 August 2005

13 September 2005
The issues

Conditional Fee Agreement – Failure To Specify That Part Of Success Fee Relating To Postponement Of Payment Of Charges And Disbursements – Material Defect – Enforceability

The facts

The Claimant had succeeded in a personal injury claim against Defendant and was entitled to recover costs. The case had been funded by a Conditional Fee Agreement. The CFA had been disclosed in the detailed assessment proceedings. The body of the agreement said that the client could not recover from her opponent the part of the success fee that related to the cost to the solicitors of postponing receipt of their charges and disbursements as set out in the Schedule and that that part of the success fee remained payable by her. However, the Schedule did not refer to postponement.

The Defendant argued that the CFA was in breach of Regulation 3 (1)(b) of the Conditional Fee Agreements Regulations 2000 in that it failed to specify how much of the success fee related to postponement of payment of charges and disbursements and that it was a material defect which rendered the CFA unenforceable in accordance with the Court of Appeal decision in Spencer v Wood.

Claimant’s solicitors argued that no part of the success fee related to postponement and therefore it was not necessary to apportion the success fee and there was no breach. They further argued that if there was a defect, under the overriding objective of CPR, it was neither fair nor proportionate to deprive them of their costs.

The decision

1. The purpose of the Regulations was to afford protection to the client so that she was aware that if there was part of the success fee for which she may be responsible that was not recoverable. The CFA made reference to part of the success fee not being recoverable for postponement but it did not specify what part was attributable to postponement.

2. It was a material defect in that the client reading the CFA would not know the amount she would have to pay to her solicitors in the event of success. The overriding objective could not be relied upon as the word “unenforceable” meant what it said in accordance with Spencer v Wood.

3. The CFA was unenforceable against the Claimant and by virtue of the indemnity principle, the solicitors profit costs and success fee were disallowed in full against Defendant.

Comments

Enquiries to John Allen, Law Costs Consultant at +44 (0)1363 866 816 or jdalawcosting@btconnect.com

focus on...

Legal updates

Non-payment of insurance premiums during the Coronavirus pandemic

The forced closure of many businesses as a result of the Coronavirus pandemic has had a huge impact on the nation’s Gross Domestic Product (GDP). Recent reports from the Office for National Statistics state that the economy was 25% smaller in April than it was in February this year.

View

Legal updates

Reinstatement for property damage losses – when does it apply?

The Court of Appeal has recently considered the correct test for measuring the indemnity for property damage losses and has provided useful guidance on whether an insured needs to intend to reinstate the property to its pre-loss condition.

View

Legal updates

Coronavirus (COVID-19) insurance considerations

With instances of COVID-19 rapidly increasing throughout the UK, many businesses are considering the options available to limit staff and customer exposure to Coronavirus.

View

Legal updates

Insurance annual review 2019-2020

Welcome to our review of 2019 as we look ahead to what is on the horizon for the insurance sector in 2020.

View

The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

mailing list sign up



Select which mailings you would like to receive from us.

Sign up