Challenging funding arrangements—general principles
Produced in partnership with Nicholas Lee of Paragon Costs Solutions
Challenging funding arrangements—general principles

The following Dispute Resolution guidance note Produced in partnership with Nicholas Lee of Paragon Costs Solutions provides comprehensive and up to date legal information covering:

  • Challenging funding arrangements—general principles
  • What is a funding arrangement?
  • Why would you challenge a funding arrangement?
  • How to challenge a retainer based funding arrangement—general considerations
  • Establishing the terms of the funding arrangement (disclosure)
  • Establishing the terms of the retainer using the Solicitors Act 1974
  • Seeking an order for delivery up of the solicitors’s documents
  • Challenges to standard retainers
  • Challenges to funding agreements: CFAs
  • Challenges to funding agreements: DBAs
  • more

This Practice Note is concerned with challenges to funding arrangements associated with retainers and considers:

  1. what is a funding arrangement?

  2. why would you challenge a funding arrangement?

  3. how to challenge a retainer based funding arrangement

For more information on challenging contracts generally, see: Terminating contracts—how and when a contract ends—overview.

For further information on litigation funding in general, consider Practice Notes:

  1. Litigation funding—an introduction (funder's perspective)

  2. Litigation funding process

What is a funding arrangement?

There are two forms of funding arrangement:

  1. a funding arrangement which works as, or in conjunction with, a retainer between solicitor and client (retainer based funding arrangement)

  2. an entirely separate contractual agreement between the client and a non-legal representative third-party funder (pure funding arrangement)

It is important to recognise the distinction between the two, as will become apparent in this Practice Note, as they are challenged in different ways and different costs recovery rules and principles apply in respect of different types of funding arrangements.

Retainer based funding arrangements

Retainer based funding arrangements typically take the form of or are incidental to the retainer/contract between the solicitor and client, which determines how the legal fees will be paid. Common types of funding arrangement includes a standard retainer (based on monthly invoices), a conditional fee agreement (CFA) (Note: CFAs will often be underpinned by after-the-event insurance (ATE insurance)), or a damages-based