Retrospective CFA's - Good news for Claimants solicitors and their Clients
October 20, 2009
Posted by:Andrew Rogers
The decision in January 2009, on appeal from Master Campbell in the matter of Birmingham City Council V Forde represents potentially a very welcome change in the balance of power between Claimant and Defendant solicitors, in respect of the enforcability of retrospective CFA's and CFA success fees.
Previously the force was most definitely with the Defendant.
In the matter of King v Telegrath Group Ltd (2005) EWHC Master Hurst held:
"It was quite wrong and contrary to public policy to permit the Claimant's solicitors to recover a success fee prior to the signing of the CFA"
However the Judgment in the matter of Birmingham V Forde that "a retrospective success fee is not per se contrary to public policy" indicates that retrospective CFA' s and CFA success fees are now recoverable pursuant to to this judgment.
Not that this seems to have been accepted by Defendant solicitors and costs specialists, who undertake Defendant work.
Bills of Costs sent by this firm to solicitors for the Defendant still result in Points of Dispute being served upon us, which quote the judgment in King V Telegraph, in their contention that a pre CFA success fee is not recoverable.
In my view Birmingham v Forde clearly supersedes the King v Telegrath judgement and I see no reason why retrospective CFA's will not be recovered in many cases where this firm have entered into such an agreement with the Client. Indeed I have had some first hand evidence of this.
At a Detailed Assessment Hearing earlier this year, Master O' Riordon, when allowing the retrospective success fee claimed in the Bill of Costs, observed that; -
"this was a Court of Appeal Judgment and therefore he did not feel he could go beyond it"
The good news for our Clients is that we can now enter into a retrospective CFA with them, in which all the work undertaken is covered, even the work before they signed the agreement and that this backed by recent case law.