CFAs

Question 1

Champerty & Maintenance
1. C&M rules – intention –

2. Criminal Law Act 1967 –

Answer 1

Champerty & Maintenance
1. C&M rules – intention – to retain purity of litigation and prevent people from paying for litigation when have no interest in. Concerns about abuse of process, undue influence and fraud, if outside parties have commercial stakes in litigation outcomes.
2. Criminal Law Act 1967 – Abolished offences and Tort of C&M. But preserved that Champertous Agreements were invalid.

Question 2

Why CFAs Introduced? And What are CFAs?
3. Access to Justice –
4. S.58(2) CLSA1990 –
5. Share Risk -
6. Types:

Answer 2

Why CFAs Introduced? And What are CFAs?
3. Access to Justice – low eligibility for legal aid and no ability to afford private legal services
4. S.58(2) CLSA1990 – Contingency fee agreements – “No win, no fee”
5. Share Risk - Agreement to share risk of litigation. Only remunerated when definition of success achieved.
6. Types: Standard, Lite, CCFA (Collective), DCFA (Discounted)

Question 3

CFA Requirements
7. S.58 CLSA 90:
8. S. 27 and 29 Access to Justice Act 99:
9. S. 44 and 46 LASPO:
10. S. 58(3)(a) CLSA 1990:
11. S. 58(3)(b) CLSA1990:
12. S. 58(3)(c) CLSA 1990:
13. S. 58(4) CLSA1990:
14. CFA Order 2013 –
15. Calculation of SF –

16. King v Telegraph Group Ltd [2008]:
17. Wood v Chaleff [2002]:
18. Peterborough NHS Trust v McMenemy –

Answer 3

CFA Requirements
7. S.58 CLSA 90: CFAs introduced, no recoverability of ad liabs (SF’s and ATE premiums)
8. S. 27 and 29 Access to Justice Act 99: allowed for recoverability of ad liabs
9. S. 44 and 46 LASPO: abolished recovery of additional liabs (some exceptions)
10. S. 58(3)(a) CLSA 1990: writing
11. S. 58(3)(b) CLSA1990: must not relate to prohibited proceedings e.g. family & crime
12. S. 58(3)(c) CLSA 1990: comply with regs made by LC
13. S. 58(4) CLSA1990: success fees?: must specify percentage (of damages) and cannot exceed max
14. CFA Order 2013 – 25% cap PI, in court of 1st instance. Up to 100% other cases inc. appeals.
15. Calculation of SF – Risk that circumstances where costs/fees/expenses payable might/not occur. Liability for any disbursements. What other methods of financing were available.

16. King v Telegraph Group Ltd [2008]: can be retro not backdated (i.e. gives impression signed at earlier date)
17. Wood v Chaleff [2002]: even technical breaches of regulations would render a CFA unenforceable
18. Peterborough NHS Trust v McMenemy – permissible for ATE insurance as son as enter CFA. But does not need to be obtained immediately. Reasonable to wait for response to LoC. Conversely can be taken out much earlier.

Question 4

Transfer
19. Novation and Assignment:

20. Jones v Spires Health Care: COA –
21. Budana v Leeds Teaching Hosp: - COA -
22. Roman v Axa [2019]:

Answer 4

Transfer
19. Novation and Assignment: issues of enforceability of CFAs pre and post LASPO (01/04/13). 2x Types Novation:- 1) where C consents to transfer of retainer to new solicitor 2) Replaced by entirely new retainer
20. Jones v Spires Health Care: COA – CFA assigned therefore still benefit from pre-jackson CFA (so can claim SF/ATE)
21. Budana v Leeds Teaching Hosp: - COA - Held it was possible to transfer a CFA
22. Roman v Axa [2019]: terminating not necessarily novation. Will look at facts.