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Radford and Another v Frade and Others; QBD 8 Jul 2016

Radford and Another v Frade and Others; QBD 8 Jul 2016

Postby dls » Mon Jul 11, 2016 12:27 pm

Radford and Another v Frade and Others; QBD 8 Jul 2016
References: [2016] EWHC 1600 (QB)
Links: Bailii
Coram: Warby J
Ratio:The court was asked as to the terms on which solicitors and Counsel were retained to act for the defendants. The appeals did not raise any issues concerning costs practice, and were by way of review of the Costs Judge's rulings, and not by way of re-hearing; the question was whether the rulings had been shown to be wrong in their construction of Conditional Fee Agreements.
Held: The court should properly take into account the full range of materials setting out the arrangements between the solicitor and the client.
Held: The appeal failed. 'The risk assessment does serve the purpose of explaining the solicitors' reasons for setting the success fee at the chosen level. But it is also a contemporaneous statement by the solicitors to their clients, identifying their understanding of the clients' aim, the issues with which they would be dealing, the nature of the risks they were taking on in doing so, and what would amount to success. It is therefore objective evidence as to the scope of the work for which the parties intended to contract. It supports the narrow interpretation of the words 'your claims . . ' which the Costs Judge adopted.'
Warby J said: 'the effect of a costs order is to create a liability to pay, subject to assessment, those costs which a party has paid or is liable to pay at the time the order is made. The liability to pay costs crystallises at that point and, although its quantum will remain to be worked out, that process must be governed by the liabilities of the receiving party as they stand at that time. To allow enforcement of a retrospective agreement which increases those liabilities would be to alter retrospectively the effect of the court's order.'
This case cites:
    - Cited - Investors Compensation Scheme Ltd v West Bromwich Building Society HL (Times 24-Jun-97, House of Lords, Bailii, [1997] UKHL 28, [1998] 1 All ER 98, [1998] 1 WLR 896, [1998] AC 896)
    The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
    Held: Investors having once . .
    - See Also - Radford and Another v Frade and Others QBD (Bailii, [2014] EWHC 2602 (QB))
    . .
    - Cited - Jones v Wrexham Borough Council CA (Times 21-Jan-08, Bailii, [2007] EWCA Civ 1356)
    The claimant appealed against a decision that the conditional fee agreement with her solicitors had been unenforceable because the solicitors had not disclosed to her a conflicting interest in recommending insurers. The issue was whether the CFA was . .
    - Cited - Adams v London Improved Motor Coach Builders Ltd CA ([1921] 1 KB 495)
    The plaintiff successfully sued his employers for wrongful dismissal. The defendant argued it should not pay costs since it was the plaintiff's union who had retained the solicitors in the case, and it was the union to which the solicitors looked . .
    - Cited - Way v Latilla HL ([1937] 3 All ER 759)
    Mr Way (W), the plaintiff, was employed by Ariston, which had mining operations in Africa, as a consulting engineer and manager. He met the respondent (L) in England. He was asked to seek options to acquire concessions the respondent might acquire. . .
    - Cited - Kenneth L Kellar Carib West Limited v Stanley A Williams PC (Bailii, [2004] UKPC 30, PC, PC, [2005] 4 Costs LR 559, (2004) 148 SJLB 821)
    (Turks and Caicos Islands) The appellant had failed in his action but argued that he should not be called upon to pay the costs of the respondent because there had been an unlawful conditional fee agreement. The bill had referred to one factor as . .
    - Cited - Whitworth Street Estates (Manchester) Ltd v James Miller & Partners Ltd HL ([1970] AC 572, [1970] 1 Lloyds Rep 269, [1970] 1 All ER 796, [1970] AC 583)
    The parties disagreed as to the curial law of an arbitration agreement. The proper law of the building contract and the arbitration agreement was English but the reference was conducted in Scotland.
    Held: Evidence of behaviour after a contract . .
    - Cited - Lewis v Averay (No 2) CA ([1973] 1 WLR 510)
    The defendant had been unable to obtain legal aid, and resorted to the Automobile Association which indemnified him for his costs of his successful appeal. The respondent was legally aided on the appeal and the appellant sought an order for his . .
    - Cited - Swainland Builders Ltd v Freehold Properties Ltd CA ([2002] EWCA Civ 560, [2002] 2 EGLR 71, Bailii, [2002] 23 EG 123, [2002] 17 EG 154)
    Swainland Builders Ltd owned the freehold of a block of flats. It had granted 99-year leases at ground rents of all the flats except numbers 11 and 18. It had intended to sell the block subject to the retention of flats 11 and 18 which it initially . .
    - Cited - Thornley v Lang CA ([2003] EWCA Civ 1484, Bailii, Times 31-Oct-03, [2004] 1 Costs LR 91, [2004] 1 All ER 886, [2004] 1 WLR 378)
    The claimant had pursued the case under a collective conditional fee agreement, organised by her trade union. The defendant challenged an order for payment of the costs, arguing that under the indemnity principle, the claimant would be under no duty . .
    - Cited - Kitchen v Burwell Reed & Kinghorn Ltd QBD (Bailii, [2005] EWHC 1771 (QB), [2006] 1 Costs LR 82)
    The court considered the effect of collective conditional fee agreements. The defendant appealed against the decision of the Costs Judge whereby he held that the Claimant was entitled to claim a success fee and that there had been no breach of the . .
    - Cited - Oyston v The Royal Bank of Scotland Plc SCCO (Bailii, [2006] EWHC 90053 (Costs), Gazette)
    The client and his solicitor had entered into a CFA in 2002 which provided for a success fee of 100% of reasonable costs, plus £50,000 if the claimant recovered damages in excess of £1m. This was a champertous agreement at common law . .
    - Cited - Davies v Taylor (No 2) HL ([1974] AC 225)
    The plaintiff argued that no costs had been incurred by the successful defendant, as he was insured, and the insurance company was bound to pay his costs.
    Held: 'In this case the solicitors, no doubt first instructed by the insurance company, . .
    - Cited - Oyston v The Royal Bank of Scotland Plc SCCO (Bailii, [2006] EWHC 90053 (Costs), Gazette)
    The client and his solicitor had entered into a CFA in 2002 which provided for a success fee of 100% of reasonable costs, plus £50,000 if the claimant recovered damages in excess of £1m. This was a champertous agreement at common law . .
    - Cited - Birmingham City Council v Forde QBD (Bailii, [2009] EWHC 12 (QB), [2009] 1 WLR 2732, [2010] 1 All ER 802, [2009] 2 Costs LR 206, [2009] NPC 7)
    Christopher Clarke J upheld the validity of a retrospective CFA entered into between solicitor and client on the eve of a settlement, in the knowledge that the existing arrangement might be vulnerable to challenge. The paying party alleged undue . .
    - Cited - Chartbrook Ltd v Persimmon Homes Ltd and Others HL (Bailii, [2009] UKHL 38, Times, [2009] 27 EG 91, [2009] BLR 551, 125 Con LR 1, [2009] 3 WLR 267, [2010] 1 P & CR 9, [2009] Bus LR 1200, [2009] NPC 86, [2009] CILL 2729, [2009] 4 All ER 677, [2009] 1 AC 1101, [2009] WLR (D) 223, WLRD, HL)
    The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
    Held: . .
(This list may be incomplete)

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2016/07/11
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