The Weekly Roundup: The Costly Edition

• Published date: 09 August 2022
• Subject Matter: Litigation, Mediation & Arbitration, Disclosure & Electronic Discovery & Privilege, Trials & Appeals & Compensation, Personal Injury
• Law Firm: 1 Chancery Lane
• Author: Ms Sarah Prager and Tom Collins

This week's edition features two recent cases on recoverability of costs, each confirming that equity has no place in the consideration of costs recovery, something litigators may feel they already knew or could have intuited. It's also been a costly (but worth it) week for travel practitioners, with the new edition of Saggerson on Travel Law hitting the bookshelves and desks of the nation's solicitors, barristers and judges. We always value feedback from our readers, and remain open to suggestions as to how The Book could be made even more exciting and educational, although we consider the indication made by one of our readers that he would use it as a doorstop to be Just Plain Rude, as well as being a waste of all the intellectual firepower the team can muster. To more discerning purchasers we can only say, Enjoy the fruits of our labours (best sampled with a fine vintage or giant shot of caffeine).

Yours unfaithfully: Are CFAs subject to an implied duty of good faith by the client?

On 1^st August 2022 the Court of Appeal handed down judgment in Candey Limited v Bosheh & Anor [2022] EWCA Civ 1103, which involved a dispute between a firm of solicitors and their former client over the settlement of his claim. The issues raised by the appeal were identified as follows:

1. Can a firm of solicitors bring proceedings against their former client on the basis that the client was in breach of a duty of good faith, by settling the underlying litigation on terms which meant that the solicitors had no express entitlement to their costs?
2. To what extent, if at all, when bringing such a claim, can the solicitors rely on privileged documents?
3. To what extent, if at all, can the solicitors rely on confidential documents, provided to them after the underlying proceedings have settled?

When granting permission to appeal, Males LJ described the appeal as raising 'novel issues'; this was said to be 'something of an understatement' by Coulson LJ, delivering the lead judgment.

Background

The appellant, Candey Limited ("Candey"), a London-based law firm, had acted for the first respondent, Mr Bosheh, under a conditional fee agreement (CFA) in relation to a civil fraud claim brought in the Chancery division against him and his son by another party, Sheikh Mohamed.

The Chancery action was settled shortly before trial on a 'drop hands' basis, with the effect that, under the terms of the CFA, Candey were not entitled to recover any of their costs. Candey subsequently brought a claim against Mr Bosheh, alleging that they had suffered a loss of more than '3 million (reflecting the value of their work) due to him falsely representing that he would act in his own best interests only and in good faith, that the Chancery action against him would not succeed, and that certain central allegations against him in that action were unfounded. Candey brought a further claim against the second respondent, Mr Salfiti, on the basis that he had procured Mr Bosheh's breach of the retainer and/or was liable in unlawful conspiracy.

The claims against the respondents relied heavily on both privileged and confidential material. Mr Bosheh sought relief against the Candey's use of the same and sought...