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CFAs - Should we name and shame? An After The Event Insurance providers view

As After The Event Insurance providers, we know that arranging funding for your client at the outset of a case is one of the most important parts of a Personal Injury lawyer’s job. Whilst I’m sure we all do the job for the satisfaction it brings, once the case has settled, recovering costs is never far from our mind! We know it’s important to have a fully compliant Conditional Fee Agreement, but as the following case law may suggest, naming the defendant within the agreement may open you up for challenges to your CFA.

There have been a number of cases in which the wrong defendant was named in a conditional fee agreement, with each case reaching a different conclusion as to the validity of the CFA. Four of the most pertinent cases are discussed below.

Law v Liverpool City Council [2005] EWHC 90020 (Costs)

In this case, Liverpool City Council was named as the Defendant, but it should have correctly been Berrybridge Housing Association. The CFA in question simply named Liverpool City Council. The Court held in this case that there was in fact still a valid retainer, but that the CFA itself was ineffective and therefore only base costs and no success fee could be recovered.

Brierley v Prescott [2006] EWHC 90062 (Costs)

In this case, the Defendant was named as ‘Hertz UK Limited Car Hire’, when in fact it should have been the driver of the vehicle, Mr Prescott. The Court in this case held that the intention of the parties was obvious, in that a claim for damages was to be made for personal injury suffered on a specific date, which was being handled by Hertz. The Judge held that the CFA was binding in this instance and therefore costs could be recovered, including a success fee

Hailey v Assurance Mutuelle Des Motards SCCO: CCD 1405291

The accident in this case happened in France. Under French law, the CFA should have actually named the Insurance Company rather than the Defendant, which it did not. The Court in this instance held that if the wrong defendant was named in a Conditional Fee Agreement then there was no valid retainer and thus the indemnity principle meant that no costs could be recovered.

Brookes v DC Leisure Management Ltd and Technogym UK Ltd [2013] EW Misc 17 (CC) Exeter County

The CFA here named the Defendant as Exeter City Council, when in fact the Defendant should have been DC Leisure Management Ltd and Technogym UK Ltd.

The court upheld a previous decision of Master Gordon-Saker, and held that no costs would be recovered.

The court pointed out that it was unnecessary to name any defendant at all, saying:-

"Although the statutory requirement is that the CFA must be in writing, it does not have to identify the Defendant.”

Does this leave you confused as to the Courts stance in relation to the CFA? We aren’t surprised. It seems that the lesson to be taken away from the varying decisions in the above cases is that the CFA should not name the Defendant, but include the accident date so that the specific proceedings can at least be identified.

As lawyers and providers of After The Event Insurance, we’re all too aware that the devil is in the detail but in this instance, the detail can be the devil!

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