Costs News

06 December 2017
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CA: Transfer of pre-LASPO CFA a novation but success fee still recoverable

The transfer of a conditional fee agreement (CFA) from one law firm to another that occurred before 1 April 2013 but where the client only consented to it afterwards led to a novation but the new solicitor could still recover the success fee, the Court of Appeal ruled on Tuesday after taking a “broad and purposive approach” to interpreting LASPO.

Nick Bacon QC of 4 New Square, who led the claimant’s appeal in the Court of Appeal, described the decision as “probably the most significant costs case post Jackson”.

The case was seen to be about assignment, but the court held that that it was a novation by a majority of 2:1. The court also found the then Mrs Justice Rafferty’s reasoning in the previous authority on CFA assignment – Jenkins v Young Bros Transport Ltd in 2006 – was incorrect.

District Judge Besford’s ruling in Budana v Leeds Teaching Hospital NHS Trust was leapfrogged to the appeal court – where the Law Society was permitted to intervene in support of the claimant – in the wake of several conflicting decisions in the lower courts.

He held that the CFA was not validly assigned from Baker Rees to Hull-based Hudgell, as the agreement had been terminated prior to the assignment when Baker Rees closed its personal injury practice. The purported assignment occurred just days before the Jackson reforms came into force on 1 April 2013, but the client did not confirm her consent to it until afterwards.

Giving the lead judgment in the Court of Appeal, Lady Justice Gloster found that DJ Besford had erred in finding that the Baker Rees CFA had been terminated, because the claimant had not elected to treat the contract as terminated.

She said the key issue was whether the claimant was entitled to recover the success fee, observing: “There is no reason in principle why rights and benefits [her emphasis] under a firm of solicitors’ contracts with its clients, or its books of business, should not be capable of assignment in today’s business environment…

“Whereas generally a contract between a solicitor and his client might well be regarded as a personal contract from the point of view of both the solicitor and the client, the question is fact specific and depends on the individual retainer.

“Given the circumstances in which most claimant personal injury litigation is now conducted… the CFA between a client and his solicitor in such a case lacks the features of a personal contract. What the client wants is representation by a competent practitioner and not necessarily representation by a specific individual (whom he or she may probably never meet).

“However, as the Law Society itself pointed out, the element of consent was crucial… That necessarily gives rise to the question whether the provision of consent by the client gives rise to a new and novated contract and, if so, on what terms.”

Gloster LJ ruled that there had been a novation under which the client agreed to transfer the rights and obligations of Baker Rees to Hudgell and that the correct interpretation of section 44(6) of LASPO – the transitional provision which allowed claimants to recover success fees after 1 April 2013 for CFAs signed before then – meant the original success fee payable under the Baker Rees CFA was still enforceable.

Gloster LJ said: “It is clear… that, objectively construed, the intention of the parties was that Hudgell should simply be substituted in Baker Rees’s place… under and subject to the same terms of the existing (and so far as the parties were concerned, at least) continuing retainer…

“[It would be] an over-technical application of the doctrine of novation so as to prevent any litigant, who had begun a claim under a CFA prior to 1 April 2013, from recovering costs in respect of a success fee, simply because a novation had occurred as a result of a change in the constitution of the firm of solicitors acting for her, or as a result of the conduct of her claim being transferred, for whatever reason, to a new firm of solicitors.”

Lord Justice Beatson agreed, but Lord Justice Davis, though also allowing the appeal, found that there had been an assignment rather than a novation.

He said: “If the parties to an agreement expressly agree in it that one party may assign both the benefits and the obligations of performing the contract to another, then in my opinion there can be no legal objection to the efficacy of such an assignment.”

He added: “An overall conclusion in favour of the defendant would appeal to no sense of the merits… It would mean that the defendant is absolved from paying those costs by virtue of adventitious technicality”.

Davis LJ accepted the need for a “broad interpretative approach” to the meaning of section 44(6). “It accords with the clear policy underpinning the transitional provisions of LASPO… The contrary approach would tend to frustrate the policy underlying the legislation.

“The consequence of this contrary approach would, for instance, connote that persons in the position of the claimant would forfeit the rights which they had prior to 1 April 2013 while potentially also not obtaining the mitigating benefits available to those entering into their arrangements after 1 April 2013. That, surely, would be perverse.”

The case will now return to the county court to consider the continuing dispute over the level of costs claimed by Hudgell.

Neil Hudgell, managing director of Hudgell, said: “The Court of Appeal has delivered an eminently sensible decision that brings certainty to law firms up and down the country which have come to the aid of clients who needed solicitors to take over their cases.

“It is regrettable, to say the least, that defendants are returning to the bad old days of the ‘costs war’ and taking technical points in a bid to escape their liability for costs. The Court of Appeal has sent a strong message today that it does not like that approach.”

Law Society president Joe Egan said: “I am delighted the Law Society was able to throw its weight behind this important case. Today’s ruling will affect many thousands of people who, following the removal of legal aid for the bulk of personal injury claims, needed to rely on ‘no win no fee’ agreements to pursue their cases.

“Our contribution to the case has been to emphasise the pernicious impact of a loophole in the law which hit many vulnerable litigants.”

Mr Bacon added: “The decision brings to an end years of uncertainty over the assignment of solicitors’ retainers and legitimatises the transfer arrangements which were deployed in the case and thousands of others.

“It is a tremendous victory for the solicitors’ profession and indeed for those members of the Bar whose fees were caught up in the assignment arguments up and down the country.”

Mr Bacon and Nico Leslie (instructed by Victory Legal Costs Solicitors) acted for the appellant, Roger Mallalieu (instructed by Acumension) for the respondent, and David Holland QC and Galina Ward (instructed by Irwin Mitchell) for the intervener.

 

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