Utting v McBain [2007] EWHC 90085 (Costs) (17 August 2007)

Utting v McBain [2007] EWHC 90085 (Costs) (17 August 2007)

Failure to specify in the CFA how much of the success fee relates to the costs of postponement, even if nil, is a material breach of Regulation 3(1)(b) of the CFA Regulations 2000 and renders the CFA unenforceable. The materiality test does not save the CFA from unenforceability in this context.

Citation
[2007] EWHC 90085 (Costs)
Parties
Appellant (claimant): David Utting; Respondent (defendant): Philip McBain
Jurisdiction
England and Wales
Judgment Date
17 August 2007
Procedural Posture
Costs Appeal / Appeal From Costs Officer's Decision
Outcome
Appeal dismissed
Legal Topics
Conditional Fee Agreements, CFA Regulations 2000, Success Fee, Detailed Assessment, Materiality Test
Civil Procedure Costs Conditional Fee Agreements CFA Regulations 2000 Success Fee Detailed Assessment Materiality Test

Case Brief

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Parties

David Utting

Appellant (claimant)

Philip McBain

Respondent (defendant)

Procedural Posture

Costs Appeal / Appeal From Costs Officer's Decision

Legal Issues

  1. 1 Whether the CFA complied with Regulation 3(1)(b) of the CFA Regulations 2000 regarding specification of the postponement element of the success fee
  2. 2 Whether failure to specify the postponement element renders the CFA unenforceable
  3. 3 Whether the materiality test can save the CFA from unenforceability

Ratio Decidendi

Failure to specify in the CFA how much of the success fee relates to the costs of postponement, even if nil, is a material breach of Regulation 3(1)(b) of the CFA Regulations 2000 and renders the CFA unenforceable. The materiality test does not save the CFA from unenforceability in this context.

Court Disposition

Appeal dismissed

Orders

  • Claimant's appeal is dismissed
  • Claimant to pay costs of the appeal, to be assessed if not agreed