Caselaw Review: Gaynor v Central West London Buses Ltd - Work Carried out Before CFA Signed is Recov
Held: Section 58 defines a CFA as an agreement to provide litigation services. Section 119 of the same Act provides that this must relate to "contemplated proceedings”. No proceedings can be contemplated before a Defendant indicates a dispute. Work prior to there being a "real likelihood” of proceedings was not "litigation services”. The retainer was not a CFA, and the costs incurred under it could be recovered from the Defendant.
Comment: This is important authority from the Court of Appeal which will normally allow a Claimant to recover the cost of preliminary work carried out at the early stage of a claim before a CFA is entered into - including disbursements and an After the Event Insurance policy. It may also assist in recovering costs where an informal "No Win No Fee” agreement is mistakenly entered into. Alternatively, it may be possible to enter into a retrospective CFA which covers previous work - see Forde v Birmingham CC (2009).
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