Assignment of CFAs and novation: Jones v Spire Healthcare Limited

On 25th September 2015, the Regional Costs Judge in the County Court at Liverpool handed down a reserved judgment in an interesting case dealing with the assignment of conditional fee agreements. He found that conditional fee agreements cannot be assigned, outside of the exceptional circumstances identified in Jenkins v Young Brothers Transport and that a novated retainer created between solicitor and client in the case before him was unenforceable due to its failure to comply with the Conditional Fee Agreements Order 2013. It is expected the case will go to appeal. A full copy of the judgment should be available next week and will be posted on this site.

The glittering prizes

Each year I attend a number of conferences in the fields of law that interest me: costs most obviously, but also personal injury litigation and planning and environmental law.

I have just returned from two days spent at New College Oxford, attending the 43rd Joint Planning Law Conference. It is always fun to visit Oxford, perhaps particularly so for me, as I did not study there and so I always discover something new on my visits.

The conference lectures took place in the Oxford Union, and within a day or two, I anticipate the cramp wearing off, and feeling returning to my limbs, as the Union’s seating seems to have been introduced contemporaneously with the Great Reform Act of 1832 and not updated since.

Nonetheless it was fascinating to visit the room where the concept of inter partes recoverability of success fees and ATE was devised, during the course of a debate in the 1990s, and to listen to some very interesting ideas on the building of new garden cities, solutions for the housing shortage and the conservation of our built heritage.

One feature in the room that caught my eye was a bust of F E Smith, who of course must have spoken at the Oxford Union many times:

photoF E Smith, later Lord Chancellor and the first Earl of Birkenhead, was one of the most famous barristers of his time.

He was not a good man, but he was an interesting one.

His progress through the Conservative party was blocked by Stanley Baldwin (who observed that he wished his Cabinet to remain one of faithful husbands: F E notoriously had an eye for the ladies) and he was instrumental in the introduction of the 1925 property legislation, some of the most far reaching reforms in property law in history.

He also wrote the most famous opinion ever given by a barrister, both for it’s accuracy and its brevity.

In 1907, Smith was asked to give an opinion on a proposed defamation action by the Lever Brothers against newspapers owned by Lord Northcliffe concerning allegations of a conspiracy to raise the price of soap by means of a ‘soap trust’.

After working all night reading a pile of papers nearly four feet thick and consuming a bottle of champagne and two dozen oysters, F E opined “There is no answer to this action in libel, and the damages must be enormous.”

The newspapers subsequently paid Lever £50,000 (just over £4,100,000 at 2010 prices), more than four times the previous record for a defamation action.

I have to say, that if any of my own pupils try a similar stunt, I gently point out to them, that things have changed a little since F E’s day.

But perhaps he is best known for his pithy aphorisms and quotations, many of them in current use, but the knowledge of their author having faded from view.

Of them all, perhaps this is the best known:

Politically, economically and philosophically the motive of self-interest not only is but must…and ought to be the mainspring of human conduct…For as long a time as the records of history have been preserved human societies passed through a ceaseless process of evolution and adjustment. This process has sometimes been pacific, but more often it has resulted from warlike disturbance. The strength of different nations, measured in terms of arms, varies from century to century. The world continues to offer glittering prizes to those who have stout hearts and sharp swords; it is therefore extremely improbable that the experience of future ages will differ in any material respect from that which has happened since the twilight of the human race … it is for us who, in our history have proved ourselves a martial … people … to maintain in our own hands the adequate means for our own protection and … to march with heads erect and bright eyes along the road of our imperial destiny.

 

The midnight hours and Costs Barrister 2.0

The last three weeks have been as busy as any in my career, including arguing test cases on part 45, the recoverability of VAT by medical agencies and whether a CFA is capable of assignment and consequential wanderings across the country from Croydon to Liverpool via London, Sheffield and Manchester.

Hence the redevelopment of  www.costsbarrister.co.uk has taken a backseat of late.

In the midnight hours I have experimented with the WordPress 2016 theme amongst others, enjoyed tinkering with the musical accompaniment to the site, added the Yoast, Yuzo and Social Sharing plug ins, and suffered the alarm of locking myself out of the website, and it crashing, through installing a ferociously tough security programme designed to prevent hacking.

This latter incident required a complete restore from the nifty and automated backup system this site possess’s which takes the pain out of backing up on a daily basis and which otherwise I would be tempted not to bother with: forget homo naledi and homo neanderthalis: these days the division is between homo tergum and homo carpe diem.

Since this website went live in 2012, there have been no fewer than 750,000 spam attacks.

On balance, however, I would hope the National Security Agency, or any enemies, whether foreign or domestic would have scant interest in this website so have relaxed the security protocols a little.

The conclusion of these efforts sees me deciding to retain the sturdy 2011 theme: none of the newer themes fundamentally improve upon it and it has been praised for its crisp, clear, lines and simplicity.

The coming weeks should see articles placed on this website on the subject of children’s claims and solicitor-own client success fees, more on the assignment of CFAs, the relationship between part 36 and part 45 and Fast Track costs, and of course the two big items which have arrived recently, the new format Bill of Costs and the Civil Justice Council’s paper on Damages Based Agreements.

Artist's impression

Homo naledi noting that the county court coffee machine is out of order: again.