Utting v McBain

Utting v McBain

The CFA was unenforceable because it failed to specify, as required by Regulation 3(1)(b), how much of the success fee related to the cost of postponement, even if the amount was nil. The omission was a material breach, not cured by any waiver or lack of client prejudice, and thus no costs were recoverable for the relevant period.

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, Detailed Assessment, Enforceability of Cfas, Regulatory Compliance
Civil Procedure Costs Conditional Fee Agreements Detailed Assessment Enforceability of Cfas Regulatory Compliance

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 Conditional Fee Agreement (CFA) complied with Regulation 3(1)(b) of the CFA Regulations 2000
  2. 2 Whether failure to specify the percentage of the success fee relating to postponement of fees renders the CFA unenforceable
  3. 3 Whether the materiality test can save the CFA from unenforceability

Ratio Decidendi

The CFA was unenforceable because it failed to specify, as required by Regulation 3(1)(b), how much of the success fee related to the cost of postponement, even if the amount was nil. The omission was a material breach, not cured by any waiver or lack of client prejudice, and thus no costs were recoverable for the relevant period.

Court Disposition

Appeal dismissed

Orders

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