Court Of Appeal Rules Pre-Jackson CFA Was Validly Transferred

On appeal by the Claimant, the Court of Appeal has found that a claim involving a pre-1 April 2013 CFA agreement could be validly transferred to a new firm after 1 April 2013 and the success fee would remain recoverable.

Facts

The Claimant brought a claim for damages when a defective pavement caused her to trip over and sustain injury to her ligaments, whilst she was attending the Defendant hospital. The Claimant instructed Baker Rees Solicitors ("Baker Rees") to bring a claim on her behalf and she entered into a Conditional Fee Agreement, which provided for a success fee, with Baker Rees on 2 December 2011.

Some time in early 2013, Baker Rees decided that it was no-longer financially viable to continue their personal injury practice and so they wrote to the Claimant on 22 March 2013 advising that they were transferring her case to Neil Hudgell Solicitors. The Claimant was told that unless she advised otherwise, her case would be automatically transferred on 25 March 2013. The case was effectively sold-on, along with numerous others, via a Deed of Assignment.

On 31 March 2013, Neil Hudgell Solicitors contacted the Claimant to advise that they were now dealing with her claim and that they would act for her on the same terms as the CFA she had entered into with Baker Rees. On 17 May 2013, the Claimant signed a 'new' CFA Agreement dated 25 March 2013 ("the NH CFA") with Neil Hudgell in the event that the 'old' Baker Rees CFA Agreement ("the BR CFA") had failed to be validly assigned.

The NH CFA Agreement took the form of a CFA compliant with the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO), which provided for zero success fee.

Shortly after, in late 2013 and prior to the claim litigating, the Claimant settled her claim for £4,150 in damages plus costs. The parties were unable to reach an agreement on the issue of costs and so Detailed Assessment Proceedings were commenced, with the matter going before DJ Besford.

Issues between the Parties

One of the main areas of dispute between the Parties related to the recoverability of the success fee under the BR CFA Agreement. During the period in which the Claimant's case was transferred, LASPO came into force. Of critical importance was s.44 of the Act which abolished the recoverability of success fees. However, there are transitional provisions under s.44(6) which allow for success fees to be recoverable if a CFA Agreement was entered into before 1 April 2013.

It was the Defendant's...