THE SOLICITOR, THE LIQUIDATOR AND THE CFA: STEVENSDRAKE THE JUDGMENT AT TRIAL

2 Responses

1. 

   PJ Kirby · March 9, 2016 at 09:57:33 · →

   To misquote Eric Morecombe this appears to me to have been the right result but not necessarily for the right reasons. The judge found [100] that an “implicit term … overrides or negates any contrary term in the CFA.” The judge acknowledged that his conclusion “may, at least superficially, seem at odds with the principles governing construction of and implication of terms into a contract” but found that the contemporaneous evidence led to no other conclusion. On facts of this case it would appear to me that a finding (which he would have made) for Mr Hunt based on estoppel by convention would have been safer.
   The judge’s postscript about the elephant in the room appears to me to suggest that one cannot have a CFA that is dependent on recoveries as the same would supposedly offend the indemnity principle. If that is what the judge was suggesting I disagree – a CFA lite was dependent on recoveries and so long as the client has a liability top pay the recovered costs (which after all are the client’s) I do not see any problem with the indemnity principle and the elephant in the room becomes but a mirage.

2. 

   Tim · March 20, 2016 at 01:07:11 · →

   This was not a small elephant. The judge should have dragged it into the courtroom, addressed it and (if necessary) shot it, rather than throwing a carpet over it.

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