Claimants win CFA appeals

PRATT AND DUNN: Judges show little truck with claims of technical breaches in agreements

The courts have dealt two further blows to efforts made to challenge conditional fee agreements (CFAs) on highly technical grounds, the Gazette has learned.

In both Pratt v Bull at Taunton County Court and Dunn v Ward in Chester County Court, initial district judge decisions upholding technical challenges were overturned.

Application for the leave to appeal to the Court of Appeal has been lodged in both cases, as it has in the case that emerged last week on whether claimants have to produce CFAs to the defendant.

In Worth v McKenna, a circuit judge said they need not unless there was evidence of non-compliance with the CFA Regulations 2000 (see [2002] Gazette, 7 November, 1).

Both Pratt and Dunn considered this issue.

In Pratt, Judge Cotterill said that just because some solicitors disclose their CFAs, the decision of others not to do so is not suspicious.

'I am wholly satisfied that the defendants were engaged in nothing more than a fishing expedition,' he said.

'The defendants were not "white knights" trying to protect the claimant, but were attempting to mount a potentially profitable exercise by exploiting any deficiency in the claimant's paperwork or procedure.'

In Dunn, Judge Kevin Barnett said the CFA should be lodged with the court, which would consider the objections of the defendant.

If there was a 'real and substantial' concern, rather than a 'sham or fanciful' one, the claimant would be asked to waive privilege so the defence could see it.

Judge Barnett knocked down two other technical arguments.

He said the requirement to inform the client whether the solicitor has an interest in recommending a particular insurance does not mean solicitors have to inform the client when they have no such interest.

He also said the required written explanation of the CFA can be included with the CFA itself, although a separate document would be best.

More generally, the judge said: 'Given that the raison d'tre for the CFA scheme was, and is, to facilitate access to justice, as a general rule I would have thought that the approach of the courts should be to try to uphold such agreements.'

Leading claimant firm Amelans is acting in Dunn.

Senior partner Martin Cockx said: 'In this sort of climate, insurers should be co-operating and they're clearly not.

It's a purely tactical response.' Somerset firm The Stokes Partnership is acting in Pratt.

All three cases have been brought by City firm DLA on behalf of Churchill Insurance.

The lawyer acting, Paul Dowle, had no comment.

Neil Rose