Practice and Procedure


PUBLISHED October 29, 2003

The claimant was able to establish the necessary liability on his part to pay for the legal services provided to him through a collective conditional fee agreement entered into between his trade union and his solicitors. He was thus in a position to recover the 20 per cent success fee from the defendant.Appeal by the defendant ('L') from the judgment of Field J on 25 February 2003 dismissing an appeal from a decision in costs only proceedings upholding a finding that the costs payable by L to the claimant ('T') should include a 20 per cent success fee. T, who was a bus driver and member of a trade union, sought damages from L for personal injuries suffered in a road traffic accident. T's legal services were rendered pursuant to a collective conditional fee agreement ('CCFA') concluded between his union and his solicitors. A compromise was reached whereby L's insurers agreed to pay ?2,349 to T plus reasonable costs in full and final settlement. The costs sought by T included a 20 per cent success fee which his union had agreed it would pay to his solicitors pursuant to the CCFA. L contended that T had incurred no liability to pay the success fee to his solicitors and accordingly had no right to recover it as part of his costs. An issue of principle was raised in relation to the effect of s.58 Courts and Legal Services Act 1990 where a trade union funded legal services provided to one of its members. T challenged the judge's conclusion that T could only become subject to a binding obligation to pay his solicitors if he complied with the Conditional Fee Agreements Regulations 2000 ('the CFA Regulations').HELD: (1) Where a trade union or insurance company or motoring organisation instructed a solicitor to act for a litigant and agreed to pay his costs it was not easy to justify a finding that the litigant came under an independent obligation to pay the solicitor. (2) But for the formal requirements imposed by s.58 of the 1990 Act and the CFA Regulations, a binding obligation would have been imposed on the claimant to pay the solicitors who were acting for him. All that was required was that he should acquiesce in the instruction of the solicitors on his behalf by his union (Adams v London Improved Motor Coach Builders Ltd (1921) 1 KB 495). The facts of the instant case were stronger as T had received a client care letter that he would be liable to pay those costs. (3) T's challenge to the judge's reasoning was well founded. The contract pursuant to which T came under a liability to pay the solicitors for their services was a CCFA. As such it was not subject to the CFA Regulations. T was therefore able to establish the necessary liability on his part to pay for the legal services provided to him. He was thus in a position to recover those costs without infringing the indemnity principle which governed the basis upon which a court could properly make an award of costs.Appeal dismissed.

[2003] EWCA Civ 1484