Damage Done! Defendants’ damages-based agreements invalid and costs not recoverable in high value probate case
Dispute resolution analysis: The Senior Courts Costs Office held that Damages Based Agreements (DBAs) in a high-value probate case were unenforceable due to non-compliance with the DBA Regulations 2013. The court rejected cost claims under both the DBAs and purported new retainers, emphasising strict adherence to statutory requirements. This ruling underscores the critical importance of carefully drafting funding arrangements and retainers in line with regulations. It serves as a stark reminder to practitioners of the risks associated with non-compliant DBAs, potentially resulting in inability to recover costs. The case also reaffirms the court's commitment to public policy, administration of justice, and consumer protection in assessing such agreements. Practical implications written by James Miller of 18 St John Street Chambers.