Can I enter into a retrospective CFA?

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Published on LexisPSL on 16/07/2015

The following Dispute Resolution Q&A provides comprehensive and up to date legal information covering:

  • Can I enter into a retrospective CFA?
  • The general common law position on retrospective contracts
  • Retrospective agreements and the Courts and Legals Services Act 1990
  • What's the difference between retrospective and backdated CFAs?
  • Example—retrospective
  • Example—backdated
  • Jackson reforms

Can I enter into a retrospective CFA?

The simple answer is yes.

Whether you can enter into a retrospective conditional fee agreement (CFA) is not a matter of statute but one of common law and although there has been judicial resistance, the law on whether retrospective CFAs are allowed was settled in Birmingham City Council when Christopher Clarke J, as he then was, held that there was no public policy reason why retrospective success fees under CFA should not be allowed.

Subsequent cases in which retrospective CFAs have been allowed include:

  1. Pentecost—Turner J allowed an appeal on the basis that a collective CFA (CCFA) was compliant with the provisions in the CLSA 1990. In doing so he applied the ordinary meaning of the wording within the CCFA to find that information provided for the purposes of the first CCFA under existing retainers did not need to be resubmitted when a second CCFA was entered into on the basis that the second CCFA clearly provided for it to be retrospective for the purposes of pre-existing instructions to solicitors. For a detailed analysis of this case, see News Analysis: Retrospective collective CFA allowed on appeal (Pentecost v John)

  2. Ghising—Patterson J, on an appeal on a point of principle, has allowed retrospective conditional fee agreements (CFAs). The appeal was successful on the basis that the costs master’s decision was unclear and was not substantiated by the evidence available to the court. In this case, the risk assessment had not changed considerably over time such that a success fee

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