“What is the main purpose of this application?”
“In our experience, our opponent will normally seek to settle a case before trial”
“A solicitor who is retained or employed to prosecute any action, suit or other contentious proceeding shall not enter into any arrangement to receive a contingency fee in respect of that proceeding”
“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?”
“ 18 Other Points Immediately before you signed this Agreement we verbally explained to you the effect of this Agreement and in particular the following: ….. (d) Other methods of financing these costs including Private Funding, Community Legal Service Funding, Legal Expenses Insurance, Trade Union Funding (e) Whether we consider that any particular method or methods of financing any or all of the 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 opponents costs, unless, for example, it believed, that the proceedings were brought, or carried on, unreasonably, frivolously or vexatiously. We believe the risk of a 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 the 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 to be recoverable if the case is transferred 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 (sic) Legal Insurance, depending upon your financial circumstances at that time”. (d) Other methods of financing these costs including Private Funding, Community Legal Service Funding, Legal Expenses Insurance, Trade Union Funding (e) Whether we consider that any particular method or methods of financing any or all of the 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 opponents costs, unless, for example, it believed, that the proceedings were brought, or carried on, unreasonably, frivolously or vexatiously. We believe the risk of a 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 the 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 to be recoverable if the case is transferred 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 (sic) Legal Insurance, depending upon your financial circumstances at that time”
“……in order to prevent any arguments 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”
“I first went though 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 client to sign the same which she kindly did. I also signed the agreement in her presence. I then discussed with her, her case generally and that we think her case is over the£ 5,000 mark. However advised client about her claim in detail in particular the litigation risks as she has no documents to support her claim in respect of damages and in particular in respect of special damages”
“Consideration there must still be but, in my judgment, the courts nowadays should be more ready to find its existence so as to reflect the intention of the parties to the contract where the bargaining powers are not unequal and where the finding of consideration reflect (sic) the true intention of the parties”
“…… overlooked the fact that the defendants clearly as a matter of policy never intended to invoke art. 11(c). Mr Jepson (senior administrator for Costain) put it plainly when he said that the defendants had to disregard the article in the particular circumstances, those circumstances being that the plaintiff had sustained the accident in Dubai, and “… whatever the reasons, whatever the circumstances, we ought to pay him the compensation according to the Act.”
“Q: …If Ms Forde had not signed, would you have continued to act? A That is a hypothetical question Q If Ms Forde had not signed, would you have continued to act? A I could have, as she would have been unreasonable and had not been taking my advice Q You would have ceased to act for her? A I had the right Q Was your continuing to act contingent on her signing CFA2? A She was happy to sign it, had I received a call from Mr Khan when he had visited her then I would have had to consider the position Q Surely as a firm you had a policy? A Only 1 refused. Q What happened? A It was against a Housing Association client and we were confident of success so we carried out [sic]. Against BCC I would have withdrawn. Maybe would have considered the position. The position of Rose Forde is that she is a severely disabled lady, there was an offer of settlement on the table – we probably would have continued”
“…if the gift is so large as not to be reasonably accounted for on the ground of friendship, relationship, charity or other ordinary motives on which ordinary men act, the burden is upon the donee to support the gift”
“In order to rebut the presumption it is not sufficient that the complainant understood what he was doing and intended to do it. The problem is not lack of understanding but lack of independence”
“(5) Thus there is a prohibition on the making by solicitors of agreements of the kind assumed to have been made in this case; (6) Although it is true that the prohibition is only imposed in terms on solicitors, and they alone are liable to imposition of a professional penalty for breach, a contract requires the concurrence of at least two parties and the effect of the prohibition, if observed, is to outlaw the making of such agreements”
“88. There is no doubt that, as between the Claimant’s solicitors and their client, the CFA may be backdated. This would, in my judgment, be sufficient to satisfy the court that there was a proper retainer between the client and his solicitors before the signing of the CFA, i.e. the client by signing the CFA is ratifying what has gone before. There seems no doubt that the Claimant is entitled to recover base costs from the date when he instructed his solicitors until the signing of the CFA”
“(1) A party may not recover as an additional liability: …… (c) any additional liability for any period in the proceedings during which he failed to provide information about a funding arrangement in accordance with a rule, practice direction or court order; ”
“11.7 Subject to paragraph 17.8 (2), when the court is considering the factors to be taken into account in assessing an additional liability, it will have regard to the facts and circumstances as they reasonably appeared to the solicitor or counsel when the funding arrangement was entered into and at the time of any variation of the arrangement. 11.8 (1) In deciding whether a percentage increase is reasonable relevant factors to be taken into account may include: (a) the risk that the circumstances in which the costs, fees or expenses would be payable might or might not occur; (b) the legal representative’s liability for any disbursements; (c) what other methods of financing the costs were available to the receiving party”
“Mr McCombe …… claims that, even if the alleged agreement is discarded as illegal and unenforceable, and without making any reference to that agreement at all, the plaintiff is entitled to be paid a reasonable sum for professional services rendered by him to the defendant on behalf of the defendant’s clients, the surrounding circumstances being such as to show that such services were not rendered gratuitously. Sir Godfray le Quesne, representing the defendant, resisted that argument. It was, he submitted, only because of the unlawful fee-sharing agreement that the introductions were made by the plaintiff to the defendant at all. Accordingly he suggested that the plaintiff was in effect seeking to recover part of the consideration payable under an illegal and unenforceable agreement. That is, I think, a possible view of the case. But the preferable view in my judgment is that the plaintiff is not seeking to recover any part of the consideration payable under the unlawful contract, but simply a reasonable reward for professional services rendered. I accept that as an accurate description of what on this limited basis the plaintiff is, in truth seeking. It is furthermore in my judgment relevant that the parties are not in a situation in which their blameworthiness is equal. The defendant is a solicitors’ firm and bound by the rules. It should reasonably be assumed to know what the rules are and to comply with them. If, in truth, it made the agreement as alleged, then it would seem very probable that it acted in knowing disregard of professional rules binding upon it. By contrast the plaintiff, on the assumption made (which I have no difficulty in accepting) was ignorant that there was any reason why the defendant should not make the agreement which he says he made. In other commercial fields, after all, such agreements are common. ……In any event, however, there is a crucial distinction between a case in which a plaintiff is in effect suing on a contact of loan and a case in which the plaintiff is not suing on any contract but simply for the value of work done. On this limited basis I would for my part allow the appeal and reinstate the action to the extent of permitting the plaintiff to purse a quantum meruit claim for reasonable remuneration for professional services rendered”