Revoke the Conditional Fee Agreements (Revocation) Regulations 2005


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I think we can all agree that the revocation of the Conditional Fee Agreement Regulations 2000 was a sad day for the legal costs world.

Regrettably, the Jackson Costs Review did not recommend that these Regulations should be restored. The proposal to end recoverability of additional liabilities has much to commend it but the attractions of the Regulations for a paying party do not need to be spelt out.

I’ve been mulling over a suitable mechanism for trying to restore the CFA Regulations 2000 and I think I’ve found a possible answer.

The new government has set up a new website and Deputy Prime Minister Nick Clegg says: “ Your Freedom website issues a ‘call to arms’ against pointless regulation and unnecessary bureaucracy. He wants to know how you would like to see the government balance the rights of the citizen with the laws of the state”. The website invites members of the public to suggest unnecessary rules and regulations that should be repealed.

This website has already produced a number of ideas in relation to CFAs (click link).

Now, this website is really designed to reduce unnecessary rules and regulations but I think I have found a way around this. I have therefore proposed that the Conditional Fee Agreements (Revocation) Regulations 2005 should themselves be revoked. This would presumably reinstate the CFA Regulations 2000. And all in the name of reducing regulations.

If enough defendants and insurers support this proposal we can produce an overwhelming momentum. Make the dream a reality. Vote here.
 


8 thoughts on “Revoke the Conditional Fee Agreements (Revocation) Regulations 2005


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    Robert Pettitt on said:

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    The day the government precluded the kind and caring defendant from ‘assisting’ the claimant in raising techinical challenges to his retainer was a sad one.

    I don’t think so.

    It is somewhat ironic that you would want to use a vehicle ‘to arm against pointless regulation and unnecessary bureaucracy’ to bring back pointless regulation.

    I do not condone the way in which some of the CFA Regulations were breached, but many of the none 4.2(c) & (e) challanges made by the defendants were a joke.

    I once had a challenge (took to assessment) that regulation 2.2 (A conditional fee agreement to which regulation 4 applies must contain a statement that the requirements of that regulation which apply in the case of that agreement have been complied with) had not been complied with because the statement was printed in the bill and should have been handwritten after the matters had been explained. The defendant naturally failed on the challenge a) because it was the standard Law Society CFA b) the regulation simply required the statement to be there c) it has no material effect on the administration of justice/client protection.

    That is one example of the weak challenges that were raised and let’s face it win or lose the defendant’s costs draftsman would get paid by someone. He wouldn’t risk his fees on a CFA with all these challenges!

    I wonder how many defendants (or more likely their insurers) were encouraged to enter into costly satellite litigation on the back of Samonini, Hollins and Garrett (amongst others) to then find themselves paying their own and adverse costs.

    I can see that it is somewhat enticing to a defendant to be told that you can possibly knock out the claimant’s fees if you pay me to have a go at this techical issue.

    Incase i am waffling i will get right to the point. Techinical CFA challenges were nothing more than a cost generating exercise for the litigants involved. There are some costs disputes that can be quite techinical but these are infrequent. The defendant has lost this method of racking up the costs. I admit that a winning claimant litigant would rack up equal (and sometimes greater base costs) with a nice fat success fee on top, but then again the claimant’s litigant did not raise the technical challenge.

    The final point i have to make was briefly mentioned at the very start of this comment.

    The regulations were made to protect clients and to ensure that justice was administered properly.

    I’m not going to cover the administration of justice point as even i can accept that that has become a secondary concern with the revocation of the regulations. Although i do believe Garbutt provided sufficient scope for penalising peristant failings.

    The method by which the regulations were enforced gave the defendant the opportunity to challenge the validity of the retainer even where the claimant was completely happy with the service. I suspect that the judiciary in many respects wish that they has followed Master Seager Berry in Ghannouchi v Houni.

    I would expect defendant litigants to deny this, but as i recall in Burstein v Times Newspapers Ltd, Burstein LJ said ‘Satellite litigation about costs has become a growth industry, and one that is a blot on the civil justice system’.

    He was right. How many court hours were wasted on costs that could have been spent dealing with, what i would call, more important matters like family cases.

    And all that didn’t need to be said, because (as i am sure you are aware) the SRA code of conduct adequately protects a claimant in the scenario where they are disatisfied with their solicitors compliance 2.03.

    On a separate note I think it’s a shame that people keep posting under anon. It’s possible to make a post with a personal opinion or your claimant/defendant hat on without it ruining your career (well i hope it is!)


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    paul elder on said:

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    Totally agree with Mr Pettitt

    On a personal note – i prefer this blog when it is informative, rather than speculative.


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    Pete B on said:

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    I prefer the blog when it is tongue in cheek and amusing, as this post is clearly meant to be.

    Although I don’t doubt that Defendants miss the CFAR!


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    paul elder on said:

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    Yes i assumed it was a bit tongue in cheek, i just find Simon’s informative posts more helpful in understanding certain issues.


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    Simon Gibbs on said:

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    Thanks Paul. My invoice for advisory services is in the post.

  6. Pingback:
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    Legal Costs Blog – Who still reads this rubbish? : GWS – Defendant law costs draftsmen, legal costs consultants, costs lawyers, legal costs negotiators, law costs draftsman


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    Simon Coulson-day on said:

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    Its was a sad sad day perhaps when law became an issue of money claimed or over amply received for providing help rather than about trying to attain equality within law, courts and society. I am sure without most laws many who think they have much now could subsequently lose all their possessions and standing potentially at any time. at the whim of a perpetrator. Inequality is one of the major causes of crime. It is not onlt those with pockets full of money, not always honestly or equally gained, who crave what society advertises. A poor man may equally have the desires to have a rools royce. With such inequality how will he ever own such a vehicle? He just goes and nicks one. society creates its own problems. You cannot have one withouth the other. There is an equality, it is a state of mind, many may not even be able to comprehend. But in the mean time lets hope the law will always be there for those who own the greater portion of equality, as without it they once again become equal.


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    Simon Coulson-day on said:

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    My rant contains utterly abomniable spelling

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