Findley v Motor Insurers' Bureau & Anor

Findley v Motor Insurers' Bureau & Anor

The first CFA is unenforceable due to material breaches of Regulation 4(2)(d) and (e) of the Conditional Fee Agreements Regulations 2000, specifically failure to provide adequate explanation and disclose the solicitor’s interest in the TAG insurance. The retainer was frustrated by the claimant’s incapacity on 4 February 2004. The Litigation Friend’s conduct amounted to an implied retainer on the terms of the second CFA, but the second CFA also breached Regulation 4(2)(d) and (e). However, these breaches were not materially adverse to client protection or the administration of justice, so the second CFA is enforceable. The letter of 4 May 2006 does not vary the retainer beyond increasing...

Parties
Claimant: Lindsey Findley (by his sister and Litigation Friend Joy Findley Clarke); First Defendant: Barrington Jones; Second Defendant: Motor Insurers’ Bureau
Jurisdiction
England and Wales
Judgment Date
13 January 2009
Procedural Posture
Costs Assessment / Post Settlement Application / High Court Judgment on Enforceability of Conditional Fee Agreements and Costs Liability
Outcome
First CFA unenforceable; Second CFA enforceable; Claimant’s solicitors entitled to reasonable costs under second CFA; No cap on disbursements by insurance limit; Hourly rates may only be increased by RPI as per retainer.
Legal Topics
Conditional Fee Agreements (cfa), Capacity to Contract, Legal Expenses Insurance, Indemnity Principle, Materiality of Regulatory Breach, Litigation Friend Retainer, Costs Assessment
Civil Procedure Contract Law Legal Profession Regulation Conditional Fee Agreements (cfa) Capacity to Contract Legal Expenses Insurance Indemnity Principle Materiality of Regulatory Breach +2 more

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Parties

Lindsey Findley (by his sister and Litigation Friend Joy Findley Clarke)

Claimant

Barrington Jones

First Defendant

Motor Insurers’ Bureau

Second Defendant

Procedural Posture

Costs Assessment / Post Settlement Application / High Court Judgment on Enforceability of Conditional Fee Agreements and Costs Liability

Legal Issues

  1. 1 Whether the first CFA dated 20 July 2001 is unenforceable due to breach of the Conditional Fee Agreements Regulations 2000
  2. 2 Whether the solicitor provided adequate oral and written explanation as required by Regulation 4
  3. 3 Whether the solicitor had a discloseable interest in the TAG insurance policy and failed to disclose it

Ratio Decidendi

The first CFA is unenforceable due to material breaches of Regulation 4(2)(d) and (e) of the Conditional Fee Agreements Regulations 2000, specifically failure to provide adequate explanation and disclose the solicitor’s interest in the TAG insurance. The retainer was frustrated by the claimant’s incapacity on 4 February 2004. The Litigation Friend’s conduct amounted to an implied retainer on the terms of the second CFA, but the second CFA also breached Regulation 4(2)(d) and (e). However, these breaches were not materially adverse to client protection or the administration of justice, so the second CFA is enforceable. The letter of 4 May 2006 does not vary the retainer beyond increasing...

Court Disposition

First CFA unenforceable; Second CFA enforceable; Claimant’s solicitors entitled to reasonable costs under second CFA; No cap on disbursements by insurance limit; Hourly rates may only be increased by RPI as per retainer.

Orders

  • Claimant’s solicitors to recover reasonable costs and disbursements under the second CFA, subject to detailed assessment.
  • Hourly rates recoverable only up to RPI increase from 4 May 2006.