Findley -v- Jones & MIB - 90130 (Costs)

The claimant’s claim was pursued under the provisions of a TAG policy with a conditional fee agreement entered into between solicitor and claimant. Senior Costs Judge Master Hurst held that there had been a breach of the relevant regulations in relation to the initial agreement which was held to be unenforceable, with the consequence that the costs claimed there under were not recoverable.

The case, however, did raise some additional issues, including the important issue as to the effect of capacity upon a conditional fee agreement. Having entered into two CFAs, the claimant lost capacity by reason of mental illness. The senior costs judge held that when a client lost capacity to contract and the solicitor was aware of the fact, the contract was automatically frustrated and therefore came to an end. On the facts of this case, the senior costs judge also accepted that the litigation friend had retained the solicitors on the same terms as the previous CFA and considered that it was appropriate to imply acceptance of an implied retainer.

The CFA in question had been entered into before November 2005 and as a consequence the relevant regulations applied. On the facts the regulations had not been complied with but the senior costs judge held that the departure from the requirements of the regulations was not, in this case, material and therefore the retainer was held to be enforceable.

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