Julian Chamberlayne describes how retrospective & discounted CFAs are treated by the court
Following Birmingham CC v Forde [2009] EWHC 12 (QB) and Gloucestershire County Council v Evans and another [2008] EWCA Civ 21, which respectively held that retrospective conditional fee agreements (CFAs) and discounted CFAs were not contrary to public policy, we have waited many years for decisions applying the principles. December 2011 saw an end to that wait, with two interesting decisions in the Senior Courts Cost Office (SCCO).
The cases & decisions
Starting with retrospective CFAs; in JM Dairies Limited v Johal Dairies Limited and another [2011] EWHC 90211 (Costs), Master Gordon-Saker followed the Forde decision, by accepting that retrospective CFAs were not contrary to public policy and hence were lawful, but held on the facts of the case it would be unreasonable to require the defendants to pay the large retrospective success fees claimed (including £60,000 for solicitor’s work done before the CFA had been entered into), in the absence of notice of the CFA during that
