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Practice Direction – Pre-Action Conduct 9.3 makes clear, if there was ever any doubt, that even pre-proceedings:
“Where a party enters into a funding arrangement within the meaning of rule 43.2(1)(k), that party must inform the other parties about this arrangement as soon as possible and in any event either within 7 days of entering into the funding arrangement concerned or, where a claimant enters into a funding arrangement before sending a letter before claim, in the letter before claim.”
Is it sufficient to advise “we have entered into a CFA” or “our client has the benefit of an ATE policy” or does it trigger the full requirements under CPD 19.4? CPD 19.4 states:
“(1) Unless the court otherwise orders, a party who is required to supply information about a funding arrangement must state whether he has –
entered into a conditional fee agreement which provides for a success fee within the meaning of section 58(2) of the Courts and Legal Services Act 1990;
taken out an insurance policy to which section 29 of the Access to Justice Act 1999 applies;
made an arrangement with a body which is prescribed for the purpose of section 30 of that Act;
or more than one of these.
(2) Where the funding arrangement is a conditional fee agreement, the party must state the date of the agreement and identify the claim or claims to which it relates (including Part 20 claims if any).
(3) Where the funding arrangement is an insurance policy, the party must –
(a) state the name and address of the insurer, the policy number and the date of the policy and identify the claim or claims to which it relates (including Part 20 claims if any);
(b) state the level of cover provided by the insurance; and
(c) state whether the insurance premiums are staged and, if so, the points at which an increased premium is payable.
(4) Where the funding arrangement is by way of an arrangement with a relevant body the party must state the name of the body and set out the date and terms of the undertaking it has given and must identify the claim or claims to which it relates (including Part 20 claims if any).
(5) Where a party has entered into more than one funding arrangement in respect of a claim, for example a conditional fee agreement and an insurance policy, a single notice containing the information set out in Form N251 may contain the required information about both or all of them.”
CPD 19.4 is unqualified as to how the requirement arises simply saying “a party who is required to supply information about a funding arrangement must state whether he has…”. On this analysis the Practice Direction – Pre-Action Conduct imposes the requirement to supply information and CPD 19(4) then contains the details of the information to be provided. It is not sufficient to simply advise there is a CFA or ATE policy in place without giving the full information required under CPD 19.4.