The Court of Appeal has ruled that a law firm’s conditional fee agreement had retrospective effect, even if that was not specifically set out in the contract.
In Singh & Ors v Ingram Lord Justice Coulson found that the parties had understood the CFA covered all the work done on the claim prior to its signing and upheld decisions from both a cost judge and the High Court.
Coulson said the appeal by the paying party represented a final attempt by the appellants to avoid the costs consequences of what had been a ‘disastrous’ piece of commercial litigation. They had been made subject to an indemnity costs order but contested the terms of their opponents’ CFA, signed in 2015 with south east firm Boyes Turner.
The relevant clause in that agreement had stated that charges would follow for work done in relation to the claim ‘in respect of which the firm has been engaged since 30 March 2012’. Costs Judge Nagalingam had ruled in 2021 that the CFA applied retrospectively based on this clause.
The appellants argued that the terms of the CFA were not express, clear or unambiguous on retrospectivity, and that the solicitor had not explained fully what the costs implications of the clause were.
Coulson concluded that the CFA was ‘plainly retrospective’ and concerned with the work that Boyes Turner had done on the claim, with no distinction between costs incurred before and after 2015.
On the costs judge’s findings, the appeal judge concluded, the respondent always understood that the CFA would be retrospective because that is how it had worked before. ‘There is no requirement that any particular form of words must be used; there is certainly no requirement that, for a CFA to be retrospective, the word “retrospective” must be used,’ he added.
Andrew Warnock KC and Gurion Taussig, of Deka Chambers, who represented the successful respondents, said the court had found no basis for criticising Boyes Turner.
They added: ‘The decision will be of relevance to all solicitors considering inclusion of retrospectivity within CFA’s and highlights the need for careful drafting of such contracts to ward off challenges to costs upon detailed assessment.’
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