What Defects Make a CFA Unenforceable? (October 2003, Judith Ayling)

Articles02nd February 2004

Since April 2000, when the new regime of conditional fee agreements with success fees recoverable from an opponent came into force, claimants’ solicitors have been engaged in what the Court of Appeal has described as trench warfare with solicitors acting for liability insurers. Relying on the indemnity principle to put them in the shoes of their opponents, insurers have been challenging the enforceability of CFAs. If such arguments were successful, then it was of course not only the solicitor’s success fee which was at risk but the entire cost of the solicitor’s services and possibly also the disbursements. On 22nd May 2003 in Hollins v Russell [2003] EWCA Civ 718 the Court of Appeal handed down judgment in 6 test cases which had been listed together to resolve a number of issues commonly being fought over in the trenches.

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