Kerry Underwood

NOVATION/ASSIGNMENT OF CONDITIONAL FEE AGREEMENTS: ANOTHER CASE

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In Warren v Hill Dickinson LLP [2018] EWHC 3322 (QB) (30 November 2018)

the Queen’s Bench Division of the High Court refused boxing promoter Frank Warren permission to appeal against a Costs’ Master’s decision that his Conditional Fee Agreement had been assigned or novated to the defendant firm of solicitors.

Consequently he was bound to pay the new firm’s fee.

The court held that there was no material difference between a firm ceasing to carry out personal injury work as in

 

Budana v The Leeds Teaching Hospitals NHS Trust & Anor [2017] EWCA Civ 1980 (05 December 2017)

 

and a firm ceasing to practise, as in this case.

 

Neither was there any relevant distinction between ceasing to practise altogether and the closure of a partnership and its reconstruction as a limited liability partnership as in

 

 

Plevin v Paragon Finance Ltd (No. 2) [2017] UKSC 23.

 

The original firm was not in breach of contract in ceasing to practise, and even if it had been, the Conditional Fee Agreements were not terminated unless the claimant accepted the alleged repudiation, whereas in fact he had consented to their transfer to the second firm.

 

The original decision appealed against is at [2018] EWHC B6 (Costs).

 

Comment

This decision is correct on the facts, but the court is surely in error in dealing with the issue of entire contracts.

Here the court found that Mr Warren had consented to the assignment/novation, so the issue is obiter, that is not necessary on the facts of the case and therefore not binding.

However, had he not consented, then surely the first firm of solicitors would have fallen foul of the entire contract rule and been entitled to nothing.

If the rule applies even where a party is paying an hourly rate, win or lose, then surely it must apply with more force in a conditional fee case, where not only does the solicitor have to finish the case, it also has to win it in order to get paid.

Thus Cutter v Powell (1795) 6 T.R. 320 must apply.

The court’s reasoning that the analogy breaks down as Mr Cutter died makes no sense. Here, the law firm died.

The statement that “the law firm remained in existence and capable of hiring a lawyer to conduct Mr Warren’s case” is in conflict with the court’s statement that “it ceased to practise on 30 September 2013.”

As with some other decisions on assignment/novation of Conditional Fee Agreements, this judgment does not make a lot of sense.

 

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Written by kerryunderwood

December 21, 2018 at 1:59 pm

Posted in Uncategorized

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