Q&As

Does a CFA have to include a success fee to be enforceable?

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Produced in partnership with Alex Bagnall of Total Legal Solutions
Published on LexisPSL on 08/08/2016

The following Dispute Resolution Q&A produced in partnership with Alex Bagnall of Total Legal Solutions provides comprehensive and up to date legal information covering:

  • Does a CFA have to include a success fee to be enforceable?
  • What is a CFA?
  • What are the requirements for a CFA?
  • What is a success fee?
  • Additional requirements where a CFA provides for a success fee
  • Is there a prohibition on certain types of proceedings being the subject of a CFA?
  • Does a CFA have to include a success fee to be enforceable?
  • What happens if the CFA does provide for a success fee but does not comply with these requirements?

Does a CFA have to include a success fee to be enforceable?

What is a CFA?

A conditional fee agreement (CFA) is a type of funding agreement which is more commonly referred to as a ‘no win no fee’ agreement. Section 58(2)(a) of the Courts and Legal Services Act 1990 (CLSA 1990) formally defines a CFA as:

'an agreement with a person providing advocacy or litigation services which provides for his fees and expenses, or any part of them, to be payable only in specified circumstances'

What are the requirements for a CFA?

In order to be an enforceable CFA, the requirements of CLSA 1990, s 58(3) must be met:

  1. it must be in writing

  2. it must not relate to proceedings which cannot be the subject of an enforceable CFA; and

  3. it must comply with such requirements (if any) as may be prescribed by the Lord Chancellor

The requirements prescribed by the Lord Chancellor are to be found in the Conditional Fee Agreements Order 2013, SI 2013/689 (CFA Regulations). The CFA Regulations impose further requirements only where the CFA provides for a success fee.

What is a success fee?

CLSA 1990, s 58(2) provides:

  1. a CFA for a success fee, if it provides for the amount of any fees to which it applies to be increased, in specified circumstances, above the amount which would be payable if it were not payable only

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