ON TRANSFER FROM THE BIRMINGHAM
London, EC4A 1DQ
B e f o r e :
| ROSE FORDE
|- and -
BIRMINGHAM CITY COUNCIL
Miss Kerry Bretherton (instructed by Mirza Ahmad, Chief Legal Officer) for the Defendant
Hearing dates: 14,15,19 and 21 February 2008
Closing submissions 6 March 2008
Crown Copyright ©
1.1 Is the second Conditional Fee Agreement unenforceable because it concerns matters contained within the first CFA?
1.2 Was it reasonable for the Claimant to enter into the second Conditional Fee Agreement? If not, what is the effect of this?
1.3 Is the second CFA unenforceable because it is retrospective?
Was there undue influence? If so, what is the effect of that upon:
the first Conditional Fee Agreement
the second Conditional Fee Agreement
the success fee
inter parties costs
If the second Conditional Fee Agreement is enforceable can this agreement be retrospective?
What period is covered by the second Conditional Fee Agreement?
Can the success fee be retrospective?
Is the success fee valid and/or reasonable?
If the second Conditional Fee Agreement is not enforceable at all or for limited periods, is the first Conditional Fee Agreement valid?"
|14 June 2007||Graham James McGrath (McGrath 1) for Miss Forde|
|18 July 2007||Katherine Sally Priest (Priest 1) for the Council|
|29 October 2007||Katherine Sally Priest (Priest 2) for the Council|
|29 October 2007||Elizabeth Hilary Homfray for the Council|
|29 October 2007||Lisa Catherine Morgan for the Council|
|21 November 2007||Graham James McGrath (McGrath 2) for Miss Forde|
|18 January 2008||Katherine Sally Priest (Priest 3) for the Council.|
THE CONDITIONAL FEE AGREEMENTS
"2. What is covered by this agreement
(a) proceedings brought by you against your Landlord or former landlord, Birmingham City Council arising from your tenancy and/or occupation of a dwelling house owned by your landlord and based upon breach of contract and/or a tortuous act and/or based on proceedings under the Landlord and Tenant Act 1985 and/or the Defective Premises Act 1972 and/or such other defendant against whom you have a cause of action but not including any claim based upon personal injury
3. What is not covered by this agreement
Any appeal by your opponent against an order made in the County court, except an interim appeal where we advise you in our absolute discretion in writing that it should be opposed because you have a reasonable chance of success.
Any appeal you make against an Order made in the County court, except an interim appeal which we in our absolute discretion advise should be pursued because you have a reasonable chance of success
4. Paying us
If you win your claim you pay our charges and expenses as set out in paragraph 5 below save where 'reduced charges' are due in the circumstances set out below
We may end this agreement before you win or lose. Please see paragraph 9 for details.
Charges and Expenses
Our charges are based on the time we spend dealing with your case.
We are obliged by Law Society Rules to give you the best estimate that we can for our overall charges and expenses.
Our current estimate is that our fees are likely to be between £1,200 and £1,500 if your case does not proceed to trial, and between £1,800 to £2,200 if a trial proves necessary
8. Reduced Charges
[if] you are successful in recovering money from your opponent, but it is not possible to either agree that your opponent will pay your legal costs and expenses or alternatively the court does not make an order that your opponent pays your legal costs and expenses, you will only be liable to pay either the amount we would normally charge you under clause 5 above or the amount calculated in accordance with the formula below, whichever is the lower [original emphasis] figure:
If the amount of compensation recovered is £3000 or less, we will limit our charges to £1,000 plus VAT plus the full amount of any expenses incurred.
If the amount of compensation recovered is more than £3000 then we will limit our charges to no more than one third of the total compensation recovered (to which VAT will be added). Therefore this formula operates as a cap on our charges in these circumstances. Again the full amount of any expenses incurred will also be payable.
9. Ending the Agreement before your claim for compensation ends
(b) paying us if we end this agreement
(i) we can end this agreement if you do not keep to your responsibilities as outlined in clause 11 below
(iii) we can end this agreement if you reject our opinion in relation to the conduct of the case
11. Your responsibilities
co-operate with us
not ask us to work in an improper or unreasonable way.
13 What happens if you win
You are then liable to pay all our charges and disbursements in accordance with the other clauses of this agreement ..
18 Other points
Immediately before you signed this agreement we verbally explain to you the effect of this agreement and in particular the following
(e) other methods of financing these costs including Private funding, Community Legal Service Funding, legal expenses insurance, Trade Union funding
(f) whether we consider that any particular method or methods of financing any or all of these costs is appropriate. We have advised you that in relation to these proceedings, if they are referred to the Small Claims Track of the County Court, a court would not normally order you to pay your opponent's costs, unless, for example it believed the proceedings were brought, or carried on, unreasonably, frivolously or vexatiously. We believe that the risk of the court making such an order is minimal and that therefore we do not believe that a contract of insurance to cover those risks would be appropriate in these circumstances. We have also advised you that we do not consider that it would be appropriate to insure against your costs and disbursements as the premium is likely to be expensive and would not likely be recoverable if the case is referred to the Small Claims Track. We have further advised that if the case is allocated to the Fast Track or the Multi-track it will be appropriate at that stage to consider either an application for a Legal Services Commission Public Funding Certificate, or, alternatively, After the Expenses insurance, depending upon your financial circumstances at that time."
If you win your claim, you pay our basic charges, our disbursements and a success fee [emphasis added]. You are entitled to seek recovery from your opponent of part or all of our basic charges, our disbursements, a success fee and insurance premium as set out in the document 'Conditional Fee Agreements: What you need to know'
The Success Fee
The success fee is set at 100 per cent of basic charges, where the claim includes a trial; or 75 per cent where the claim concludes before a trial has commenced, but after proceedings have been issued, or 50 per cent where the claim concludes before proceedings are issued. In addition 0 per cent relates to the postponement of payment of our fees and expenses and cannot be recovered from your opponent. The success fee inclusive of any additional percentage relating to postponement cannot be more than 100 per cent of the basic charges in total."
"What do I pay if I win?
If you win your claim, you pay our basic charges, our disbursements and any success fee. The amount of these is not based on or limited by the compensation. You can claim from your opponent all or part of our basic charges, our disbursements, any success fee and insurance premium
If you receive provisional compensation, we are entitled to payment of our basic charges, our overall disbursements and any success fee at that point
These are for work done from when you first instructed us and until this Agreement ends. You are agreeing to pay us for work done before the signing of this Agreement in consideration of our continuing to act on you behalf in connection with this case. These basic charges are subject to review.
Any success fee percentage set out in the agreement reflects the following:
(a) the fact that if you lose, we will not earn anything;
(b) our assessment of the risks to your case;
(c) any other appropriate matters;
(d) the fact that if you win we will not be paid our basic charges until the end of the claim;
(e) arrangements with you about paying disbursements.
Dealing with costs if you win
You are liable to pay all our basic charges, our disbursements and any success fee
If the court carries out an assessment and reduces any success fee because the percentage agreed was unreasonable in view of what we knew or should have known when it was agreed, then the amount reduced ceases to be payable unless the court is satisfied that it should continue to be payable.
If we agree with your opponent that any success fee is to be paid at a lower percentage than is set out in this Agreement, then the success fee percentage will be reduced accordingly unless the court is satisfied that the full amount is payable.
As with costs in general, you remain ultimately responsible for paying any success fee.
If your opponent fails to pay
If your opponent does not pay any compensation or charges owed to you, we have the right to take recovery action in your name to enforce a judgment, order or agreement. The charges of this action become part of the basic charges."
"Dear Ms Forde ..
We are pleased to tell you that the City Council have now made an offer to settle your case and we enclose a copy of the letter they have sent.
You will see that they are offering to pay you a total of £4,500 in compensation and in addition, are offering to pay your reasonable legal costs ..
We need to see you to discuss with you whether you are going to accept the offer in view of the fact that it is below amounts previously indicated to you, and therefore arrangements have been made for Mr Khan to come to visit you at 3.30pm on Wednesday 5th April 2006 .[original emphasis]
In order to prevent any argument about the Council being liable to pay your legal costs, we intend to take advantage of a change in the Regulations governing "no win no fee" agreements which we explain below.
By way of background we should explain that the regulations under which you signed the Conditional Fee ("No win no Fee") Agreement with us some time ago have changed.
The reason for the change was to make it more difficult for opponents such as your landlord to challenge in court the validity of the old style agreements.
That is particularly important since this firm has been the subject of a serious challenge by your landlord to the validity of the agreement of the sort that you signed with us.
In particular, the landlord has been alleging that we are not allowed to agree with you that we will charge you a reduced amount if we do not succeed in recovering a costs order in your favour.
In order, therefore, to take advantage of the new regulations and to prevent an argument such as this (which has had the effect of causing problems and delay in paying compensation to a number of our other clients) we have prepared an alternative agreement which we would invite you to sign.
A copy of the agreement is enclosed herewith.
The key features are that you are agreeing that all of the legal costs to date will be dealt with under this agreement rather than the original one (unless by some chance the court ruled that this one was not valid in which case we will rely on the original agreement).
The most important apparent effect of that is that this agreement contains a success fee and the old one did not, so on the face of it, you could be worse off.
Because of that theoretical possibility, we have to tell you that you should not sign it unless you are entirely happy with it and you are entitled to take independent legal advice if you wish.
In reality, however, you will not be any worse off because the 'cap' that we put on your costs in the original agreement still applies and the only reason we are inviting you to create a potential further liability is to ensure, as we indicate above, that the City Council pays your legal costs on a proper basis, rather than you.
Javaid Khan will explain all this to you and deal with any questions or concerns you may have.
Yours sincerely "
"58 (1) A conditional fee agreement which satisfies all conditions applicable to it by virtue of this section shall not be unenforceable by reason only of its being a conditional fee agreement; but any other conditional fee agreement shall be unenforceable
(2) For the purposes of this section and section 58A
(a) a conditional fee agreement is an agreement with a person providing advocacy or litigation services which provides for his fees and expenses, or any part of them, to be payable only in specified circumstances; and
(b) a conditional fee agreement provides for a success fee if it provides for the amount of any fees to which it applies to be increased, in specified circumstances, above the amount which would be payable if it were not payable only in specified circumstances.
(3) The following conditions are applicable to every conditional fee agreement
(a) it must be in writing;
(b) it must not relate to proceedings which cannot be the subject of an enforceable conditional fee agreement;
(c) it must comply with such requirements (if any) as may be prescribed by the Lord Chancellor."
"The requirements which the Lord Chancellor may prescribe under Section 58(3)(a) (c)
(a) include requirements for the person providing advocacy or litigation services to have provided prescribed information before the agreement is made; and
(b) may be different for different descriptions of conditional fee agreements (and, in particular, may be different for those which provide for a success fee and those which do not)."
"Information to be given before conditional fee agreements made
(1) Before a conditional fee agreement is made the legal representative must
(a) inform the client about the following matters, and
(b) if the client requires any further explanation, advice or other information about any of those matters, provide such further explanation, advice or other information about them as the client may reasonably require."
"(2) Those matters are
(d) whether other methods of financing those costs are available, and, if so, how they apply to the client and the proceedings in question,
(e) whether the legal representative considers that any particular method or methods of financing any or all of those costs is appropriate "
"it must relate to proceedings of a description specified by order made by the Lord Chancellor."
" must state the percentage by which the amount of fees which would be payable if it were not a conditional fee agreement is to be increased."
"the percentage increase must not exceed the percentage specified in relation to the description of proceedings to which the agreements relate by order made by the Lord Chancellor",
CROOK v BIRMINGHAM CITY COUNCIL  EWHC 1415 (QB)
"Public funding is extremely unlikely to have been available to any claimant until the case was allocated to the fast track. Save in very exceptional circumstances, as I understand it on the evidence before Master Campbell, public funding would not be granted otherwise. The direct advice was that, if and when the case was allocated to the fast track, the claimants should apply for public funding
34. If in practical terms it is not possible to achieve a public funding certificate before allocation, then advice that it should be sought before that point may be theoretically correct but is liable to divert and delay the conduct of the claimants' case. It is also potentially confusing and even misleading for the client. In any event, the letter did make two key points: firstly, the public funding certificate provides a measure of protection against adverse costs and secondly, that once the case has been allocated to the fast track, the claimants should seek public funding. In my view the Master was right to conclude that on this matter the letter complied with Regulation 4
35. I should record that, had I taken the contrary view and concluded that the letter gave inadequate advice as to the risk of adverse costs orders and what might be done to avoid that risk, then unless the advice was only minimally deficient, I would have regarded it as a material departure for the purposes of the Hollins v Russell materiality test. The impact of an adverse costs order might in a few cases be considerable."
BOWEN v BRIDGEND COUNTY COUNCIL (SCCO 039853- 25 March 2004)
CFA II AND PUBLIC FUNDING
"It is considered on the information available that the likely benefits of the proceedings to the client and others do not justify the likely costs, having regard to the prospect of success and all other circumstances."
SUMMARY AND ANALYSIS SO FAR
THE SUBMISSIONS FOR THE COUNCIL
CFA II RETROSPECTIVE
"When the court is considering factors to be taken into account in assessing an additional liability it will have regard to the facts and circumstances as they reasonably appear to the solicitors or counsel when the funding arrangement was entered into and at the time of any variation of the arrangement."
" seems to me to fly in the face of the CFA Regulations and the CPR .. It is of great importance that an opposing party should be aware of any additional liability as early as possible. The claimant is, to an extent, protected in that the level of success fee does not have to be disclosed, but, unless and until the defendants are made aware that they are potentially liable for a success fee, this may fundamentally affect the way in which they choose to conduct litigation."
LEVEL OF THE SUCCESS FEE
VALIDITY OF CFA I
Termination and Replacement
Regulation 4(2)(d) and (e)
"Public funding is extremely unlikely to have been available to any claimant until the case was allocated to the fast track. Save in very exceptional circumstances, as I understand it and on the evidence before Master Campbell, public funding would not be granted otherwise. The direct advice in the letter [McGraths retainer letter] was that, if and when a case was allocated to the fast track, the claimant should try for public funding."
"In my view the Master was right to conclude that on this matter the letter complied with Regulation 4. It would probably have been better had the letter said something like:
"A public funding certificate provides effective protection, if not complete protection, against an adverse costs order once it has been granted. However, in practical terms you will not be granted a public funding certificate and not achieve costs protection unless and until your case has been allocated to the fast track. That is one of the reasons why we recommend you make such an application if that situation arises.""
" if the case is allocated to the fast track or the multi track it will be appropriate at that stage to consider an application for a Legal Services Commission public funding certificate,"
that advice was wrong. Moreover since Forde was not a case in which the client had received Legal Help, the letter of advice to clients in Crook which Irwin J had found failed comply with Regulation 4, did not come into play here. Accordingly, Crook was not determinative of the issue; the decision in Crook was based on an error which had gone uncorrected by the Council until it was too late.
"Criteria to be applied for full representation
1(a) Cost benefit for all cases under Section 10 of the Code (whether possession or other claims within Section 10) the cost benefit criterion is a general test requiring simply that likely benefits of the proceedings must justify likely costs, having regard to the prospects of success and all the circumstances (criteria 10.3.3 and 10.4.4). Therefore the strict cost benefit ratio in the General Funding Code do not directly apply to housing claims within Section 10, even if the primary claim is for money.
(d) Conditional fees funding will not be refused in any housing case under Section 10 of the Code on the grounds that a CFA is suitable (criterion 10.3.1 10.4.1 disapplying criteria 5.7.1 [this provides that if the nature of the case is suitable for a CFA, Full Representation will be refused])."
"Cost benefit quantifiable claims
If the claim is primarily a claim for damages by the client and does not have a significant wide public interest, Full Representation will be refused unless the following cost benefit criteria are satisfied:
(1) the prospects of success are very good (80% or more) likely damages must exceed likely costs;
(2) the prospects of success are good (62% to 80%), likely damages must exceed likely costs by a ratio of 2:1;
(3) the prospects of success are moderate (50% to 60%), likely damages must exceed likely costs by a ratio of 4:1."
"We have done so as explained in previous correspondence because, although we regard the clients prospects of recovery of compensation in this matter as being good, with a minimum of 60%, given the uncertainties in this type of litigation, in particular in relation to issues such as notice to the landlord and the possibility that any existing disrepair may have been remedied before allocation to track, it is impossible at this stage for us to certify that this case will be allocated to the fast track As for as the costs/damages ratio is concerned the figure that we have given for the likely value of the claim is based upon the clients specific and uncorroborated instructions as to the date of notice and assumes for the recovery on that basis.
Given the normal dispute that arises in these cases, however as to the date of the notice, such an approach also pre-supposes that such a case is more likely to go to trial. The estimated costs of trial is therefore calculated on that basis "
"considered on the information available the likely benefits of the proceedings to the client and others do not justify the likely costs, having regard to the prospects of success and all other circumstances."
"Has the particular departure from a Regulation pursuant to Section 58(3)(c) of the 1990 Act or a requirement in Section 58, either on its own or in conjunction with any other departure in this case, had a materially adverse effect either upon the protection afforded to the client or upon the proper administration of justice? If the answer is "yes" the conditions have not been satisfied. If the answer is "no" then the departure is immaterial and (assuming that there is no other reason to conclude otherwise) the conditions have been satisfied."
SUBMISSIONS FOR MISS FORDE
"It is clear from Note 1 of the Code [Solicitors Costs Information and Client Care Code] will result in a breach of Rule 15 [Solicitors' Practice Rules]. It has to be a serious breach of the Code, alternatively there have to be persistent and material breaches. In my judgment, this Note is an indication that a breach of the Code does not of itself render the contract of retainer unenforceable."
"(2) Variation which can prejudice or benefit either party the parties may agree to vary the contract in a way that can prejudice or benefit either party. Here the possible detriment or benefit suffices to provide consideration for the promise of each party This possibility of benefit and detriment is sufficient if a variation is, taken as a whole, capable of benefiting either party, the requirement of consideration will be satisfied even though a particular term of the variation is for the sole benefit of one."
CFA II RETROSPECTIVE?
" [to] make an agreement in writing with his client as to his remuneration in respect of any contentious business done or to be done by him " (emphasis added)
LEVEL OF SUCCESS FEE
"To establish a claim a tenant has to demonstrate: firstly that they are and have at all times been a tenant, who can benefit from such an Agreement; secondly, they have to demonstrate that the state of repair at the property was not that as required by the Tenancy Agreement and that accordingly the landlord is in breach; thirdly, that the landlord knew (normally because of reports or complaints by the tenant) that the state of the property was such that the landlord was in breach of their repairing obligations; fourthly, that the landlord failed within a reasonable period of time to put things right; fifthly, that the tenant suffered some detriment as a result of that failure, so as to entitle the tenant to compensation for the breach.
18. None of these issues are necessarily straightforward or easy to assess If all this were not difficult enough, unlike other claims, such as personal injury, the whole basis of a claim can be altered after initial instructions have been taken and indeed at a stage when the case is well progressed towards a possible trial.
45. As is dealt with below, the chief issue in these cases is whether or not the value, or other circumstances of the case, means that it should be allocated to the Fast Track of the county court, with the likelihood of full costs recovery, or whether it should be allocated to the Small Claims Track.
46. A case that from the outset seemed destined for the Fast Track can end up in the Small Claims Track, when the tenant totally unexpectedly moves from the property to other accommodation, thereby removing at a stroke any possibility of seeking an order for specific performance and changing what would otherwise be a guaranteed Fast Track trial into one suitable for the Small Claims Track.
47. Similarly, and quite often cynically, it is open to landlords to seek to influence track allocation following the commencement of a claim, and indeed, following the commencement of proceedings, by carrying out all outstanding items of repair work within their covenants, so as to leave a money claim below that which would normally merit Fast Track allocation "
TERMINATION AND REPLACEMENT?
"Given that these defendants [the Council] argue that the CBA is unenforceable in any event, I do not see how an allegedly unenforceable after-coming agreement could be held to vitiate an otherwise enforceable CFA."
"However, I would mention one other point which seems to me to provide the same answer as I have reached to the main point for the purposes of this costs assessment. If the e-mail agreement were illegal, as Mr Bacon submitted, then it would be void and unenforceable. That would not, however, discharge the prior agreement between Mr Connolly and the liquidator (or his predecessor). If the e-mail agreement is good, it varies the original agreement in accordance with its terms, if it is bad it leaves the original agreement unaffected. There seems to me to be no basis for saying it discharges that earlier agreement and fails to replace it with anything else. Accordingly, even if the e-mail agreement were void as being an illegal contingency fee agreement, the former arrangement survives, and the liquidator is still liable for the fees. Those fees can therefore be the subject of the current inter parties assessment."
REGULATION 4(2)(D) AND (E)
"Whilst it remained relatively easy to persuade the legal aid authorities to grant a certificate to pursue a claim, it became increasingly common for there to be a limitation placed at the outset that prevented proceedings being issued
117. We then found, that once the stage was reached where proceedings needed to be issued if we were to galvanise the opponent into action and ensure that the clients got justice, applications to legal aid authorities to amend the certificate to allow full proceedings to be issued were routinely refused on the basis that the costs benefit ratio did not make it worthwhile allowing the client to issue proceedings under public funding. By that stage, because of the amount of work that had already been done and because of the effect of the statutory charge, it became frequently very difficult to justify putting any alternative funding in place, given the risks involved in this sort of litigation.
118. In short, our clients were being caught between an opponent who frequently sat back and did nothing and made no attempt to negotiate in accordance with the spirit of CPR and a funding body who were not prepared to fund vigorous litigation that would have forced the opponent to comply and meant cases settled far more quickly and ultimately economically.
119. Against this background we were increasingly coming to the view that best advice to clients may not be to follow the public funding route but go for some private funding arrangement that would remove the limitations imposed by the Legal Services Commission and allow clients to deal with claims quickly and effectively.
120. The tipping point, however, in that process came with the introduction of the Legal Help scheme at the beginning of the year 2000.
121. Whilst the equivalent to the statutory charge continued to apply for some types of cases, in housing cases the statutory charge did not apply if the case was dealt with entirely under Legal Help funding. Legal help did not, however, permit the issue of proceedings, only some preparation of the case and negotiations.
122. If, however, the client was subsequently granted a public funding certificate to pursue litigation then the statutory charge was retrospectively applied to the other work done under Legal Help.
123. Whilst this was not a problem if public funding was granted to allow proceedings to be issued and those proceedings were subsequently successful with costs paid by the opponent, it became a major problem if either the costs were not paid (or ordered to be paid) by the opponents or if the public funding certificate was issued with a limitation which prevented the issue of proceedings and which might well be discharged once proceedings became necessary.
124. In the former, the fact that a public funding certificate had been obtained meant that the statutory charge applied and not only to the work done under the certificate, but also to the work done under Legal Help and accordingly this had the potential to have a serious impact on any damages the client might recover. In the latter the client had the worst of all worlds, since they had no prospect of successfully litigating with public funding, but they were saddled with a very substantial statutory charge which would bite if they were not successful in obtaining a costs order in highly risky litigation.
125. It is against that background that we took the view that the best advice for clients who were eligible to initially advise under Legal Help and then, if attempts to negotiate a settlement failed, to put in place private funding rather than a public funding certificate. In practical terms this meant a CFA."
"Master Campbell: Have you got the references there?
Mr Mallalieu: Master I do, in Maiden the legal application I believe is at 1355 and the refusal from the Legal Services Commission is at 1428. Of course the relevance we draw from that again, it just shows in these cases that public funding is by no means a certainty but of course our case isn't predicated on the basis that we couldn't get public funding. All of these people might not be eligible for it, our case is predicated entirely that it was reasonable advice, that there was an alternative available to them which in the light of the risks to their particular case was better suited to them
So we're not saying that there was a bar to public funding which meant that we had to, or it was reasonable in the absence of public funding to sign them up to a CFA. What we say is it was reasonable advice that this was an alternative method of funding."
"Those cases [Griffiths and Maiden] were indicative that public funding in housing repair cases was by no means assured. In any event, it was McGrath's "best advice" that the alternative funding on offer, namely the CFA, was more suitable."
i) In comparison with other firms, very few Section 11 claims brought by McGrath have been publicly funded (Priest 1, paragraph 39 41).
ii) In recent years, claims by McGraths' clients have been funded by CFAs although 70% of tenants are on full housing benefit and would be eligible for Legal Help (at least until October 2007) which would cover letters to the landlord, a surveyor's report, etc (Priest 1, paragraphs 46 47 and 63).
iii) Since each CFA using the CFA II formula provides for a success fee, McGrath can potentially recover more costs under a CFA than under a public funding certificate.
iv) The housing department of the Council has a duty to ensure that money paid to tenants as compensation and to lawyers as legal costs out of the Housing Revenue Account is properly due (Priest 2, paragraph 14).
v) In the past five financial years the Council has paid several million pounds to McGrath (see Priest 2 paragraph 58 bundle page 451).
vi) The issue between the Council and McGrath is about costs and what the Council sees as inflated bills (Priest 2, paragraph 4). In particular, in Forde the Council does not understand how costs of £15,174.41 can have been incurred in a claim that settled immediately after issue for £5,000 (Priest 2, paragraph 38). Had the case been publicly funded, the costs would have been less.
"The issues raised by these appeals make it necessary to go back to first principles. Undue influence is one of the grounds of relief developed by the courts of equity as a court of conscience. The objective is to ensure that the influence of one person over another is not abused. In every day life people constantly seek to influence the decisions of others. They seek to persuade those with whom they are dealing to enter into transactions, whether great or small. The law has set limits to the means properly employable for this purpose."
"Whether a transaction was brought about by the exercise of undue influence is a question of fact. Here, as elsewhere, the general principle is that he who asserts a wrong has been committed must prove it. The burden of proving an allegation of undue influence rests upon the person who claims to have been wronged. This is the general rule. The evidence required to discharge the burden of proof depends on the nature of the alleged undue influence, the personality of the parties, their relationship, the extent to which the transaction cannot readily be account for by the ordinary motives of ordinary persons in that relationship, and all the circumstance of the case."
" After perusal of the file, when I attend [sic] the client I first went through with her the new CFA agreement and in particular I advised the client about the success fee. Once the client I [sic] understood I then asked the client to sign the same which she kindly did. I also signed the agreement in her presence."
"It is not in my view appropriate to seek to evaluate the adequacy of that consideration given by Islington, on the basis that "it did not give up very much". The consideration which it did give was I think sufficient to create a "give and take" state of affairs, as per any compromise agreement properly so called."
" so long as there is some consideration, the courts are not axiomatically concerned with its adequacy." (judgment of Sedley LJ paragraph 55 Brennan).
CFA II RETROSPECTIVE
"If it is agreed that a written agreement should apply to work done before it is entered into, it should be correctly dated with the date on which it is signed and expressed to have retrospective effect, i.e. to apply to work done before its date "
"Where the funding arrangement had (sic) changed and the information a party has previously provided in accordance with paragraph (1) is no longer accurate, that party must file notice of change and serve it on all other parties within seven days."
LEVEL OF SUCCESS FEE
VALIDITY OF CFA I
REGULATION 4(2)(d) AND (e)
"(1) Before a conditional fee agreement is made the legal representative must
(a) inform the client about the following matters
(d) whether other methods of financing [the] costs are available, and, if so, how they apply to the client in the proceedings in question;
(e) whether the legal representative considers that any particular method or methods of financing any or all of those costs is appropriate."
"Q. At the end of the day it is going to be a matter for the judgment of the caseworker, is it not, applying the criteria?
Mr Cox: Exactly."
No, accordingly (1) to (4) do not require answers.
From 16 March 2005
No (on these facts)
Invalid and not reasonable.