Michael Feakes on a recent court decision which blew CFAs a fair wind
There is stormy weather on the horizon for conditional fee agreements (CFAs), if the Jackson Report is any forecast. But at least one dark cloud hanging over CFAs has now been blown away. An appeal judge’s decision last month has provided a ray of sunshine for insurers pursuing subrogated recovery claims.
Background
The case (Sousa v London Borough of Waltham Forest [2010] EW Misc 1 (EWCC)) involved subsidence caused by tree roots. The claimant said his property was damaged by the defendant’s trees, and the claim was settled with costs to be assessed. So far, so typical.
The claim had been brought by the claimant’s insurers, under their right of subrogation. The insurers had instructed solicitors under a collective CFA with a success fee. Again, all very ordinary.
But then things went awry—at least for the claimant’s lawyers. At a hearing to assess the claimant’s costs, the defendant pointed to CPR 44.4. This rule provides that the court must disallow costs “which have been unreasonably incurred”. Any doubt over whether costs
