I have found John M Hayes to be reliable and efficient, always willing to deal with any queries or matters arising and most importantly of all, to have detailed knowledge of current costs law.
Sarah Lapsley, Chestnutts Solicitors, Southport
The recent Judgment in Brookes v DC Leisure Management & Technogym reminds solicitors of the importance of getting their house in order when it comes to Conditional Fee Agreements.
The facts of the case were that the Claimant was employed by the First Defendant. She suffered an accident at work involving equipment supplied by the Second Defendant. The Claim succeeded against the First Defendant and the Claimant’s costs fell to be determined at a detailed assessment hearing before Master Gordon-Saker. A Conditional Fee Agreement was disclosed at Court for the first part of the work which referred to a Claim against "Exeter City Council", the owner of the building out of which the First Defendant operated.
At the detailed assessment hearing, the Master held that the costs incurred under the CFA were irrecoverable as it did not constitute a valid retainer to pursue the named Defendants. The Claimant appealed against this decision.
The Claimant argued that there was an implied term in the CFA that it would cover the work done against whoever was found to be liable for the accident. This was rejected on the basis that the wording of the CFA "expressly limited the claim to one against Exeter City Council". Moreover, there was a lack of supporting evidence that caused uncertainty as to how the CFA came to be worded as it did: when the CFA was entered, the Claimant may have not envisaged or even desired a claim against the named Defendants.
The Claimant’s second argument was that, since there is no requirement for a CFA to identify a Defendant, written evidence of a variation to the CFA would suffice. Various items of correspondence were suggested to be proof that the Claimant was well aware of the change in who was being pursued. Again the Court was not persuaded: there was no evidence of consideration and, furthermore, the different statuses of the various proposed Defendants led to differing levels of risk and different causes of action.
The final throw of the dice by the Claimant revolved around an argument for estoppel by convention. It was argued that the Claimant’s conduct would have prevented her from trying to avoid liability for payment of the costs of pursuing the claim. Yet again, a lack of proof was the Claimant’s undoing. As a result of all of the above, the Appeal failed.
The High Court acknowledged that there was previous case law where inaccurately worded CFAs had been held to be valid retainers, most notably in Scott v Transport for London. The main distinguishing feature in the present matter appears to be that the nature and status of the proposed Defendants was completely different, whereas in Scott they were both public bodies.
Whilst there was no explanation given by the Claimant as to how the unfortunate situation with their original CFA arose, it was most likely a case of human error. The lesson for solicitors must be that if there is any uncertainty about the identity of an opponent, it is better not to be too specific. Referring in a CFA to, for example, "your claim for damages for personal injury arising out of the accident on (date)" will be perfectly acceptable; whereas over-specificity may well result in a CFA being held to be unenforceable.