Supreme Court Costs Office
The Issues: The Claimant signed a CFA with her solicitors in January 2005, but the Defendants were not made aware of the existence of the CFA until a letter of claim (together with a Notice of Funding) was sent in September 2005. Could the Claimant recover a success fee for work before the Notice of Funding was served?
Held: This was a claim for medical negligence and the Pre Action Protocol for the Resolution of Clinical Disputes applied to this case. That Clinical Disputes Protocol was in turn governed by the Practice Direction in relation to Protocols (“PDP”) which at Paragraph 4 provided
“A.1 Where a person enters into a funding arrangement within the meaning of rule 43.2(1)(k) he should (emphasis added) inform other potential parties to the claim that he has done so.”
The Court was not convinced that its decision in the matter of Metcalfe v Clipston (2004) was wrong and the view expressed in that decision, see below, remained correct (Para 37):
"For Miss Ward to succeed, I consider the obligation on the receiving party to give notification of funding pre issue must be absolute but in my judgment, the word "should" in the PDP does not impose such an obligation. On the contrary, I would construe "should" as meaning "ought to" which is not the same as "has to" or "must"….."
If there was a requirement to serve a Notice of Funding on all potential opponents on signing a CFA, at a time when only outline advice on prospects and quantum could be given and where many claims would never proceed, prospective Defendants would receive numerous notifications which would need to be recorded even though many of those claims would not proceed.
The Claimant was entitled to recover a success fee from the date the CFA was signed in January 2005, rather than from September 2005 when Notice of Funding was given.
Comment: Although this was a clinical negligence matter the personal injury pre action protocol is worded in similar terms. At Para 3.2 of the protocol, it states:
“...Where the case is funded by a conditional fee agreement (or collective conditional fee agreement), notification should (emphasis added) be given of the existence of the agreement and where appropriate, that there is a success fee and/or insurance premium, although not the level of the success fee or premium.”
Therefore the above decision, as well as that given in Metcalfe v Clipston (2004), is applicable to personal claims and there is no requirement to provide funding information before proceedings are issued. However, it is recommended and may be best practice to do so.