Legal Cost Specialists

Law Society's Model CFA agreement

By on Apr 4, 2011 | 9 comments

The Law Society’s Model CFA agreement, for use in personal injury and clinical negligence cases only, defines “win” as:

“Your claim for damages is finally decided in your favour, whether by a court decision or an agreement to pay you damages or in any way that you derive benefit from pursuing the claim.”

What does “or in any way that you derive benefit from pursuing the claim” mean?  Remember, this is for personal injury and clinical negligence cases only so is not concerned with alternative remedies to damages. 

    9 Comments

  1. Entering of Judgement? therefore entitled to liability costs?

    chrisa

    4th April 2011

  2. It means “In case I’ve forgotten something I don’t want to not get paid”

    Paul Williams

    4th April 2011

  3. what it covers is the eventuality that the client receives an outcome which is expressed in something other than physical payment of damages. for example, what if, in a clinical negligence dispute, the client is offered and accepts some form of expensive private treatment , or decides to agree to an apology or a donation to a charity- I think Simons interpretation of the types of cliams it covers and the remedies available are far to restricted

    It does rather beg the question, however, as to whether this alters significantly the risk to the solicitor of not being paid at all, and therefore if the trigger point of the CFA condition of “win” is much lower, shouldnt the success fee follow suit?

    I have recently seen a cfa in a commercial matter which , amongst other definitions, allowed for the trigger of “win” on any outcome the claimant elected to accept

    Anonymous

    4th April 2011

  4. I suppose in reality it removes a “Win” from only being something the Court can award. I forget the name of the case and I can’t be bothered to look it up – but a CFA was drafted with the Win including an apology. The case was won at trial, but as the apology was an unavoidable part of the definition of the win and there was no apology (and the court can’t award one), there were no costs allowed.

    So if the claimant instructs the solicitor that “it’s not about the money guv, I just want them to say sorry” then I suppose an apology and no money at least gives an arguable case that the claimant should be paying his own fees in the absence of an interparte order.

    Seems like a good way to get an urgent chat with the SRA though.

    Paul Williams

    4th April 2011

  5. judgment

    (Editor’s Note: Not the Ben Pitts from BPW Legal Recruitment)

    Ben Pitts

    4th April 2011

  6. I saw a judgment where the claimant was suing to get a particular inscription on a grave stone which the defendant church had disallowed. The church then relented, and the claimant abandoned his claim for damages. The church then argued that there had been no “win” as the claimant’s CFA defined win as the recovery of a money remedy. I think the Law Soc saw a number of such cases, which is why it adjusted the model CFA in 2005.

    Jacques Hughes

    4th April 2011

  7. Is that because solicitors were silly enough to use the CFAs for use in personal injury and clinical negligence cases only in grave stone disputes?

    Simon Gibbs

    4th April 2011

  8. Where there’s a grave there is a claim

    Chrisa

    4th April 2011

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