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Forde v Birmingham City Council, High Court, 13 January 2009

22 January 2010
The issues

Success fee – second CFA – retrospective CFA – whether respective CFA contrary to public policy – whether retrospective CFA enforceable – whether success fee enforceable.

Comments

Summary

A CFA could be retrospective. If it were the case that a retrospective success fee was contrary to public policy that did not vitiate the CFA as a whole and therefore basic costs were still recoverable.

However, in the view of the Court, a retrospective success fee was not contrary to public policy but was vulnerable to reduction or elimination on assessment.

In some cases a retrospective success fee might be unreasonable, either as between the parties or as between solicitor and client but it would not always be so. The Court had enough weapons in its armoury in the form of the criteria applicable on a Detailed Assessment and the provisions of the Costs Practice Direction and the Practice Direction on protocols to disallow or reduce retrospective fees that were unreasonable. There was no reason why the Court could not place its blue pencil through the success fee provision leaving the obligation to pay basic charges unaffected.

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