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In a previous post I commented on the fact that Cook on Costs 2009 is wrong when it says: "With the removal of the [CFA] Regulations  from 1 November 2005 a CFA needs only to be in writing and signed…".
As confirmed by Senior Costs Judge Master Hurst, in Findley v Jones and MIB  EWHC 90130 (Costs): "As things stand at the moment there is no need for a CFA to be signed by the client. As at 4 May 2004 the CFA Regulations 2000 did require such a signature". The same view was expressed in Birmingham City Council v Forde  EWHC 12 (QB).
The requirement for a CFA to be signed by the client and the legal representative disappeared with the revocation of the Regulations. However, what is the consequence if a pre-November 2005 was not signed? It will obviously be a breach of the Regulations but is it a material breach such as to render the agreement unenforceable?
In Fenton v Holmes  EWHC 2476 (Ch) the Court was faced with a CFA document which had been signed by both the solicitor and client. However, the CFA lacked a crucial clause necessary to comply with the Regulations. This clause was contained within a seperate letter sent to the client. This letter was not signed by the client. Mann J found this to be a material breach and the CFA was found to be invalid.
In Preece v Caerphilly CBC (Cardiff CC, 15/8/07, unreported) (Lawtel Link) the CFA had been signed by the client but not by the solicitors. Hickinbottom J held: "I do not suggest for one moment that the solicitor’s signature in this case was omitted for anything other than the most innocent of reasons: but, if a CFA is not signed, then a less scrupulous solicitor may for example seek to enforce his right to be paid his reasonable costs if the client’s claim fails. The signature of the solicitor affords the client some real protection against that possibility, as rare as that hopefully might be in practice". The CFA was held to be invalid.
However, in Findley, Master Hurst decided that the failure of a Litigation Friend to re-sign a CFA previously signed by the Claimant was not a material breach. The facts of this case are so unusual that it is unlikely that much comfort can be taken from this judgment by others who find their CFAs not properly signed.
As a general rule, a CFA entered into before November 2005 that is not signed by the client and the legal representative is likely to be held invalid.
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