Qualified One-way Costs Shifting
A reader of the Legal Costs Blog contacted me to say one of his solicitor clients had asked the following question:
“If we terminate the client’s CFA today and replace it with a retrospective CFA back to the beginning of the case will the client get the benefit of QOCS?”
The reader is an exceptionally knowledgeable costs specialist solicitor. The fact that his solicitor client asked the question and he asked me for a second opinion is yet a further example of how practitioners are still struggling with the basics of the Jackson costs reforms.
I have no doubt the answer to this question is meant to be: No.
The problem (ambiguity) is caused by the transitional provision and the strange use of the word “has” in:
“44.17. This Section does not apply to proceedings where the claimant has entered into a pre-commencement funding arrangement (as defined in rule 48.2).”
I am sure the word “has” is redundant as the rule is intended to cover claimants who entered into such funding arrangements pre-1/4/13 (which ties in with the definition of “pre-commencement funding arrangement”) regardless of whether it is still in place when the claim settles. Nevertheless, “has” creates an ambiguity possibly suggesting “has in place” as opposed to “had”.
Yet a further example of sloppy drafting.