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Solicitors’ Costs – Still Under Attack (…and it shows no signs of stopping!)

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Are your CFAs still open to challenge?

There have been a number of legal developments over recent years, both through civil procedure rule updates and case law, that has forced legal practitioners to make significant and fundamental revisions to their conditional fee agreements (CFA) to meet best practice requirements.

However, many firms have been slow to make the relevant revisions needed leaving them still exposed to challenges. These revisions become even more important with the recent announcement that JG Solicitors and Checkmylegalfees, the two most prominent Solicitors Act 1974 (“the Act”) challengers to PI and Clinical Negligence  lawyers’ CFAs, have joined forces.

For many years, particularly post-LASPO, Kain Knight Costs Lawyers have been drafting and revising the CFAs (and surrounding funding documentation) of firms to ensure they best meet the requirements of ongoing legal developments. However, our regular discussions with firms tell us there is still more work for legal practitioners to do.

The most common features that many solicitors are still yet to implement in their  funding documents, or secure informed consent in relation to, are (but not limited to):

  • Charging higher than guideline hourly rates;
  • Recovering costs greater than those that might be recovered (shortfall recoveries);
  • Capping a clients’ overall shortfall costs liability;
  • Avoiding the need for case-by-case risk assessments and implementing fixed success fees;
  • Ensuring statutory bills are compliant;
  • Ensuring statutory bills are properly ‘delivered’ to commence the detailed assessment clock under the Act;
  • Ensuring statutory bills are ‘paid’ for the purpose of the Act;
  • Explaining the post-April 2023 QOCS regime in personal injury claims as to the setting off of adverse costs orders against both damages and costs

If you would like a CFA health check to see whether it meets the needs of your business whilst minimising potential exposure to challenges, contact Nick McDonnell, Director and Costs Lawyer with Kain Knight on nick.mcdonnell@kain-knight.co.uk

CFA and billing case law developments:

  • Oakwood Solicitors Ltd v Menzies [2024] UKSC 34
  • Belsner v CAM Legal Services Ltd [2022] EWCA Civ 1387
  • Karatysz v SGI Legal LLP [2022] EWCA Civ 1388 
  • Herbert v H H Law Ltd [2019] EWCA Civ 527