CFAs and other Funding Flashcards
Statute/Section - CFA’s introduced, no recoverablity for additional liabilities
Section 58 of Courts and Legal Services Act 1990
Statute/Section - Allowed for recoverability of additional liabilities (Success fee and ATEI)
Section 27 (Success Fee) and Section 29 (ATEI) of Access to Justice Act 1999
Statute/Section - Abolished recovery of additional liabilities
Section 44 (Success Fee) and Section 46 (ATEI) of Legal Aid, Sentencing and Punishment of Offenders Act 2012
Statute/Section - A CFA must be in writing, not relate to proceedings for which a CFA is prohibited, and comply with regulations made by Lord Chancellor
Section 58(3) of Courts and Legal Services Act 1990
Even technical breaches of CFA regulations will render it unenforceable
Wood v Chaleff 2002
Statute/Section - Success fees must specify percentage and not exceed allowed maximum
Section 58(4) of Courts and Legal Services Act 1990
CFA can be retrospective, cannot be backdated
King v Telegraph Group 2005
Case + Appeal: First CFA terminated - initially found novated, appealed to find CFA had been assigned and retained benefit of pre-April 2013 CFA
Jones v Spires Health Care 2015 and 2016
Case + Appeal: Confirmed on appeal that it is possible to transfer a CFA
Budana v Leeds Teaching Hospital 2016 and 2017
Terminating a CFA does not automatically mean novation - must look at evidence in case
Roman v Axa 2019
A CFA can be a CBA
Healys v Partridge 2019
A CFA can be a CBA, but can also include terms to state that it isn’t
Accupay v Stephenson Harwood Solicitors 2021
Case + Appeal: Informed consent required and fiduciary duty owed for CFA, overturned on appeal
Belsner v Cam Legal Services 2020 and 2022
Definition: Champerty
Involvement and influence in litigation, providing finance with a view to profiting from proceedings (aggravated Maintenance)
Definition: Maintenance
Illegally aiding a party in legal action without lawful cause or legitimate interest
Maintenance may be direct/indirect financial assistance to carry on/defend civil proceedings
British Cash & Parcel Conveyors v Lamson Store Service Co 1908
Third Party Funding allowed in insolvency proceedings
Seear v Lawson 1880
Statute/Section - Abolished criminal offences and torts of Champerty and Maintenace
Section 13 of Criminal Law Act 1967
Statute/Section - Champertous agreements may still be unenforceable on grounds of public policy
Section 14 of Criminal Law Act 1967
Statute/Section - A compliant CFA is enforceable (Success fee not Champertous)
Section 58 of Courts and Legal Services Act 1990
Arrangement to cover expert costs lawful, Claimant retained overall control of conduct
Re (Factortame Ltd) v Secretary of State for Transport (No 8) 2002
“Arkin cap” - third party funder capped at the costs based on the amound they had funded
Arkin v Borchard Lines 2005
Defendant funded by third party investment banks, Claimant successful, third party liable for full costs
Merchantbridge v Safron General Partner 2011
Arkin Cap not automatically applied
Davey v Money 2019
