THE TRANSITIONAL PROVISIONS OF QOCS: A DANGER AREA
I have seen a few problems recently with the transitional provisions of QOCS. In essence if the claimant has entered into a conditional fee agreement at any time in the past then they cannot have the benefit of QOCS. A prudent solicitor taking on new clients must always check to ensure that there have been no agreement, or insurance, in the past which could take the matter outside the QOCS regime.
THE TRANSITIONAL PROVISIONS
CPR 44.17 provides that the QOCS principles
“does not apply to proceedings where the claimant has entered into a pre-commencement funding arrangement (as defined in rule 48.2)”.
THE DEFINITION IN CPR 48.2.
The definition at CPR 48.2 (p.1632) is complex.It refers back to CPR 43.2(1)(k)(i),(ii) and (iii). (CPR part 43 has, in fact, been revoked) In essence where a claimant has:
- entered into a conditional fee agreement,;
- taken out an ATE insurance policy,
- or entered into an agreement with a membership organisation.
Then QOCS does not apply.
Note that the rule is “has entered into”. The exemption is not limited to cases where there is a CFA in place.
THE DANGER AREA
The major danger area is clients arriving now who have, at some time in the past, entered into a CFA, CCFA or taken out ATE. These clients are in a difficult position. They cannot have the protection of QOCS.
So you must ask clients if they have entered into a CFA , taken out insurance or entered into an agreement with a membership organisation in the past.
Further it would be prudent to seek confirmation of this, particularly if the clients have seen other solicitors.
It may be possible for cases to go to trial with clients believing they have the protection of QOCS but, in reality, there being no such protection in place.
USEFUL GUIDANCE ON QOCS GENERALLY
See Kerry Underwood’s article on QOCS.
KERRY’S VIEW ON THE DRAFTING OF THE TRANSITIONAL PROVISIONS
“A first day trainee can do better than that”
KERRY’S VIEW ON THE APPLICATION OF THE TRANSITIONAL PROVISIONS
“Any one of these disapplies QOCS. By ending any relevant agreement can you disapply the disapplication and achieve retrospective QOCS protection?
This depends upon the meaning of “has entered into”. Clearly the better wording would have been “had entered into” or “has ever entered into” which would have put it beyond doubt. “Has” is not tense specific. “Has my client got a CFA ?” is present tense.
It is clearly arguable either way, but equally clearly the intention of Parliament was to disapply QOCS where recoverability of an additional liability was in place, so on the basis that courts should adopt a purposive construction of legislation, my view is that anyone who has ever had a recoverable liability does not get QOCS protection.”
Except if the intention of Parliament is to disapply QOCS where recoverability of an additional liability was in place, then a purposive construction would surely lead to the conclusion that where an arrangement had been entered into but the liability is not recoverable (because the arrangement has ended) than QOCS should apply.
That said, ‘has entered into’ more readily bears the meaning ‘has ever entered into’ than ‘has the benefit of’ and it would be a foolish solicitor who advised their client that they definitely had QOCS protection in such a scenario.
If you have entered a CFA with a client for a PI case, that is then the subject of an appeal, if the CFA does not cover an appeal can you enter into a new retainer and get the protection of QOCS?