Q&As

Would a CFA arrangement confirmed via emails and verbally satisfy the 'in writing' requirement of section 58 of the CLSA 1990?

read titleRead full title
Produced in partnership with Alex Bagnall of Total Legal Solutions
Published on LexisPSL on 21/06/2016

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

  • Would a CFA arrangement confirmed via emails and verbally satisfy the 'in writing' requirement of section 58 of the CLSA 1990?
  • 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?
  • Would a CFA arrangement confirmed via emails and verbally satisfy the 'in writing' requirement of section 58 of the CLSA 1990?
  • Would a CFA be considered to exist where one was intended, agreed and acted upon within the context of family proceedings notwithstanding section 58A of the CLSA 1990, which clearly states that family proceedings cannot be the subject of enforceable CFAs?

What is a CFA?

A conditional fee agreements (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 conditional fee agreement, 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. SI 2013/689 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 conditional fee agreement provides 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 in specified circumstances; and

Popular documents