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CCFA’s

1. The CCFA Regulations 2000 came into effect on 30th  November 2000 by way

of s. 30 of the Access to Justice Act.

 

2. Some  suggested that these regulations would not be fully operational until

the  abolition of the indemnity principle but the point was later overcome when considered in various cases by the appeal courts.

 

3. Under CCFA's membership organisations can take out block insurance or self-insure to provide 'cover'  to its members.

 

4. The point of a CCFA is basically to provide an  indemnity for legal costs

of a member but the agreement is between the solicitor and the membership

organisation.

 

5. In theory there is less explanation needed to a new client is required

than with an individual  CFA.

 

6. There must evidence of an undertaking by membership organisation  to pay

the client's costs including the opponent's costs if the case is lost  or

even if there are any interlocutory adverse costs orders against the client

during the case.

 

This is likely to tie in with the principles of

 

R -v- Miller & Glennie

 

Davies -v- Taylor

 

Lewis -v-  Avery

 

7. CCFA's were considered to be in the public interest and a consultation

paper was written as long ago as 7 years back in 1998.

 

8. Cases so far:

 

Gliddon -v- Maunder - January 2003

 

Master O' Hare said that there still has to be a valid retainer between the

solicitor and  the client. The indemnity principle is not abrogated by the

CCFA Regulations.

 

 

Thornley -v- Lang [2003] CA EWCA Civ 1484

 

GMB  union matter. The union member was still liable for costs on the basis

of a CCFA. There needs to be some form of contract with the client.

 

The court  rejected  the submission that the member had in fact entered into

an individual CFA and should be subject to the CFA Regulations.

 

9. This is still a new area which is likely to attract more indemnity

principle  challenges.

 

10. Regulation 3 compliance is still recommended. It must be explained to

the client that they are ultimately liable to pay the  costs.

 

11. s. 31 Access to Justice Act introduced the 'CFA-lite' or  'CFA-Simple' on 2nd

June 2003 which foregoes a number of the CFA Regulation  information to be

given to clients and allows solicitors to be paid only what  they recover

from the paying party. There have been difficulties with the draft of these

rules particularly with reference to whether CFA-lite's are  limited to costs

recovered or sums recovered.

 

12. Premium 'equivalent' - between the parties an amount that would have

been paid for insurance  against opponent's costs not in respect of the

solicitors' own costs.

 

JOHN KITCHEN -V- BURWELL REED & KINGHORN LIMITED [2005] EWHC 1771 3rd August 2005

 

Regarding recoverability of success fee and whether there had been a breach of the indemnity principle where the Claimant’s solicitors had been acting under a Collective Conditional Fee Agreement.

 

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