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Counsel’s CFA post-Jackson: Is his success fee recoverable?

Counsel’s CFA post-Jackson: Is his success fee recoverable?

Postby TimothyP » Mon Mar 02, 2015 10:07 am

s.58A(6) of the Courts and Legal Services Act 1990 as amended by s.44(4) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("LASPO") provides that “A costs order made in proceedings may not include provision requiring the payment by one party of all or part of a success fee payable by another party under a conditional fee agreement.”

s.44(6) of LASPO says "The amendment made by subsection (4) does not prevent a costs order including provision in relation to a success fee payable by a person under a conditional fee agreement entered into before the day on which that subsection comes into force".

CPR 48.1(1) provides that “The provisions of CPR Parts 43 to 48 relating to funding arrangements, and the attendant provisions of the Costs Practice Direction, will apply in relation to a pre-commencement funding arrangement as they were in force immediately before 1 April 2013”.

In a case where, before 1 April 2013, a solicitor and their client entered into a Conditional Fee Agreement that provides for a success fee and, after 1 April 2013, the solicitor and counsel entered into a Counsel’s Conditional Fee Agreement that provides for a Counsel’s success fee, it is in my opinion (1) clear that the client can still recover a solicitors success fee between-the-parties but (2) unclear whether the client can recover counsel's success fee between-the-parties.

Has any court ever addressed this?
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Re: Counsel’s CFA post-Jackson: Is his success fee recoverab

Postby dls » Mon Mar 02, 2015 11:29 am

What you say makes sense, but I have to say that this is (thankfully) a very strange world to me.
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Provisional Assessments

Postby TimothyP » Mon Mar 02, 2015 4:40 pm

@bcol45 on Twitter writes:
personally I've only seen it in a couple of PA's to date, and none of them allowed the success fee.Not heard any Judgements on it
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Agents' fees post-Jackson: Success fees are recoverable

Postby TimothyP » Mon Mar 02, 2015 5:30 pm

FWIW: If, after 1 April 2013, the hypothetical solicitor in my original post instructs a solicitor agent (or a similar agent such as an external law costs draftsperson), a success fee will (IMHO) be recoverable on the agent's fees.
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Re: Counsel’s CFA post-Jackson: Is his success fee recoverab

Postby Lurker » Mon Mar 02, 2015 7:07 pm

As I read it, pre-LASPO CFAs (whether with Counsel or a Solicitor) have a success fee recoverable from the other side; post-LASPO CFAs don't. So in your original example, there's an inter-partes success fee on the solicitor's fees but not on Counsel's. There could be a success fee on Counsel's fees only recoverable from the client's damages, though.

That said, I've not seen any case law on it, but possibly because it's supposed to be clear.

As for your second example, I agree: it's the agency principle and, um, Crane v Canons Leisure Centre is probably the best example I can think of off the top of my head.
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Re: Counsel’s CFA post-Jackson: Is his success fee recoverab

Postby TimothyP » Fri Apr 10, 2015 7:38 am

Barrister Roger Mallalieu writes (on pages 23 to 24 of a new book entitled Costs & Funding following the Civil Justice Reforms: Questions & Answers that was distributed last week with the White Book 2015)
The point is probably arguable. … The solicitor's fee would be recoverable in principle, but counsel's would (probably) not be.
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