CFAs and other Funding

Question 1

Statute/Section - CFA’s introduced, no recoverablity for additional liabilities

Answer 1

Section 58 of Courts and Legal Services Act 1990

Question 2

Statute/Section - Allowed for recoverability of additional liabilities (Success fee and ATEI)

Answer 2

Section 27 (Success Fee) and Section 29 (ATEI) of Access to Justice Act 1999

Question 3

Statute/Section - Abolished recovery of additional liabilities

Answer 3

Section 44 (Success Fee) and Section 46 (ATEI) of Legal Aid, Sentencing and Punishment of Offenders Act 2012

Question 4

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

Answer 4

Section 58(3) of Courts and Legal Services Act 1990

Question 5

Even technical breaches of CFA regulations will render it unenforceable

Answer 5

Wood v Chaleff 2002

Question 6

Statute/Section - Success fees must specify percentage and not exceed allowed maximum

Answer 6

Section 58(4) of Courts and Legal Services Act 1990

Question 7

CFA can be retrospective, cannot be backdated

Answer 7

King v Telegraph Group 2005

Question 8

Case + Appeal: First CFA terminated - initially found novated, appealed to find CFA had been assigned and retained benefit of pre-April 2013 CFA

Answer 8

Jones v Spires Health Care 2015 and 2016

Question 9

Case + Appeal: Confirmed on appeal that it is possible to transfer a CFA

Answer 9

Budana v Leeds Teaching Hospital 2016 and 2017

Question 10

Terminating a CFA does not automatically mean novation - must look at evidence in case

Answer 10

Roman v Axa 2019

Question 11

A CFA can be a CBA

Answer 11

Healys v Partridge 2019

Question 12

A CFA can be a CBA, but can also include terms to state that it isn’t

Answer 12

Accupay v Stephenson Harwood Solicitors 2021

Question 13

Case + Appeal: Informed consent required and fiduciary duty owed for CFA, overturned on appeal

Answer 13

Belsner v Cam Legal Services 2020 and 2022

Question 14

Definition: Champerty

Answer 14

Involvement and influence in litigation, providing finance with a view to profiting from proceedings (aggravated Maintenance)

Question 15

Definition: Maintenance

Answer 15

Illegally aiding a party in legal action without lawful cause or legitimate interest

Question 16

Maintenance may be direct/indirect financial assistance to carry on/defend civil proceedings

Answer 16

British Cash & Parcel Conveyors v Lamson Store Service Co 1908

Question 17

Third Party Funding allowed in insolvency proceedings

Answer 17

Seear v Lawson 1880

Question 18

Statute/Section - Abolished criminal offences and torts of Champerty and Maintenace

Answer 18

Section 13 of Criminal Law Act 1967

Question 19

Statute/Section - Champertous agreements may still be unenforceable on grounds of public policy

Answer 19

Section 14 of Criminal Law Act 1967

Question 20

Statute/Section - A compliant CFA is enforceable (Success fee not Champertous)

Answer 20

Section 58 of Courts and Legal Services Act 1990

Question 21

Arrangement to cover expert costs lawful, Claimant retained overall control of conduct

Answer 21

Re (Factortame Ltd) v Secretary of State for Transport (No 8) 2002

Question 22

“Arkin cap” - third party funder capped at the costs based on the amound they had funded

Answer 22

Arkin v Borchard Lines 2005

Question 23

Defendant funded by third party investment banks, Claimant successful, third party liable for full costs

Answer 23

Merchantbridge v Safron General Partner 2011

Question 24

Arkin Cap not automatically applied

Answer 24

Davey v Money 2019

Question 25

Arkin cap does not automatically apply to professional funders - Court retains discretion

Answer 25

Chapel Gate Credit v Money 2020

Question 26

Court can disclose third party funder identity

Answer 26

Re Hellas Telecomms (Luxembourg) 2017