Words of Power

Part of my work is the drafting of contracts. Some of the contracts I draft are retainer documents. Drafting is a particular skill.  My aim is to produce a clear, enforceable and legal document. Something a solicitor can rely on as against her client. Something that can be easily explained to a client. Over the years, the documents that come to me for advice and redrafting, seem to have got longer and longer. But sometimes less is more.

A very long time ago the Law Society used to produce model conditional fee agreements, for use by solicitors specifically in the fields of personal injury and clinical negligence.  In the case of Hollins v Russell and other appeals [2003] 1 WLR 2487 the Court of Appeal observed:

148. The other document they sent her was the CFA. This was in two parts, although they were stapled together. The first was headed “Conditional Fee Agreement”, and is based on the Law Society’s July 2000 model CFA. The second is headed “Law Society Conditions” and is identical to the conditions which follow at the end of that model CFA.

149. We were told that this composite document won a “Plain English” award for the clarity of its wording. It is in clear, legible print. It starts:

The agreement is a binding legal agreement between you and your solicitors. Before you sign, please read everything carefully. An explanation of words like “our disbursements”, “basic costs”, “win” and “lose” is in condition 3 of the Law Society Conditions which you should also read carefully.”

150. Signposted as she was to the Law Society Conditions, Miss Dunn would have been able to read the effect of the CFA expressed in clear terms. If she had then turned back to the CFA which refers to the Law Society Conditions she would have read: You should read the condiitons carefully and ask us about anything you find unclear.”

The model conditional fee agreement was updated for use in cases after the implementation of the LASPO 2012 reforms which came into force on 1st April 2013, and was updated in 2014. More than a decade on, the model has not been updated and has indeed, been withdrawn from use. As the Law Society webpage notes: https://www.lawsociety.org.uk/topics/civil-litigation/model-conditional-fee-agreement

The Law Society’s model conditional fee agreement (CFA) is in the process of being reviewed, and so is not currently published.

Solicitors using an old version should be aware that it does not reflect all of the recent changes to legislation, or case law, that may affect the viability of CFAs.

The model CFA and guidance were last updated in 2014. The model is intended for use in personal injury and clinical negligence claims.

The CFA will be reviewed in light of the court’s decision in Belsner v CAM Legal Services in October 2022.

We will issue a revised version in due course.

Thank you for your patience in the meantime.

In the intervening decade since the Law Society last provided model documentation, the sheer volume of retainer documentation used by solicitors, has grown like topsy. Many firms documentation resembles a coral reef, with layer upon layer of documents, with confusing and contradictory clauses, and which serves to obscure rather than illuminate the contractual bargain struck between solicitor and client, and the regulatory information which must be given to a client by the solicitor. 

The Master of the Rolls questioned this practice in the Belsner appeal in an interesting exchange with counsel acting on behalf of the Law Society:


The time is ripe for radical reform. How might this be achieved? It may be that the key is to reduce the documentation and reduce the content of it. Not to try to legislate for all eventualities in the retainer, but rather to concentrate on the most important points, and to simplify the drafting.

Perhaps the time has come to re-engage with Plain English. Their campaign is still going strong and has been running since 1979.

You can read more about the campaign here: https://www.plainenglish.co.uk/

The key principles of writing in Plain English are very straightforward. They may be summarised as follows:

-Write in short sentences of 15 to 20 words.

-Use active verbs: for example “Andrew wrote a blog” not “The blog was written by Andrew”.

-Use “you” and “we”.

-Use simple words instead of jargon.

-Don’t be afraid to give instructions.

-Avoid abstract nouns. You discussed things. Not you had a “discussion”

-Use lists(!).

-Be concise.

For many years I have thought that the perfect retainer would be 2000 words in length, on a few pages of A4, in legible font size. Although it may not be possible to achieve this somewhat arbitrary goal, due to certain requirements, it should be striven for. For the benefit of the solicitors, as well as for the clients. In the next few posts I shall provide some further thoughts on the drafting of retainers.

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