Conditional fee agreements—switching from legal aid to CFA
Conditional fee agreements—switching from legal aid to CFA

The following Dispute Resolution guidance note provides comprehensive and up to date legal information covering:

  • Conditional fee agreements—switching from legal aid to CFA
  • Switching from legal aid to CFAs
  • When will a switch from legal aid to CFA be justified?
  • Application of the principles in Surrey
  • Pre-Surrey decisions

This Practice Note considers the line of cases dealing with the recoverability of success fees where a successful claimant has switched from legal aid to a conditional fee agreement (CFA) in the course of the litigation. This forms just one of the bases upon which it is possible to challenge costs recovery under a CFA and should be considered in conjunction with the following notes:

  1. Conditional fee agreements—success fees

  2. Challenging funding arrangements—general principles

  3. Types of conditional fee agreements

Switching from legal aid to CFAs

Two elements coincided at the beginning of 2013 which resulted in solicitors, acting for claimants whose claims were funded by legal aid, advising their clients to switch to CFA/after-the-event (ATE) funding. These were:

  1. Part 2 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2012) in April 2013 significantly reduced the scope for recovery of additional liabilities such as success fees under CFAs and ATE premiums (see Practice Notes: Types of conditional fee agreements and Recovery of costs insurance premiums).

  2. the Legal Services Commission (LSC) (now the Legal Aid Agency) was reducing the scope of public funding available under legal aid contracts

This switch substantially increased the recoverable costs for successful claimants as success fees and ATE premium entered into prior to 1 April 2013 remained recoverable, even after that date, providing they fall under