One of the most deadly weapons in the costs armoury, is the unenforceability argument, directed by a paying party against a solicitors costs, incurred under a Conditional Fee Agreement or Damages Based Agreement.
Failure to get the drafting of one of these agreements correct, and so that it complies with the statutory requirements will render it unenforceable and no costs will be recoverable. Three particular points illustrate the arguments.
First, the key point is to ensure the agreements comply with both the Courts and Legal Services Act 1990 and the Conditional Fee Agreements Order 2013, or alternatively the Damages Based Agreements Regulations 2013.
Secondly, a common failing in personal injury Conditional Fee Agreements, is to include an appeal within the scope of the agreement, but to fail to cap the success fee for the appeal as required by the 2013 Order. Though this argument has yet (to my knowledge) to be tested in detailed assessment.
Thirdly, do not copy your precedents across. I can think of several instances where Damages Based Agreements, used for employment claims have been used (disastrously) for civil claims, as the requirements for compliance under the Regulations are quite different.
Arguments rarely go completely away. Instead they simply evolve and adapt to meet changing circumstances, and as long as the indemnity principle exists, these points will be taken against retainers.
Good Morning Mr Andrew Hogan
Can you please advise do you take work on direct excess as have cost assessment bill and it back dating 2011 and lot of CFA and all three form of solicitor gone into liquidation and this may be interesting cost legal claim to defendant advise We see now you have joint london chmaber read fewmonths ago