ASSIGNMENT OF CFAs: IT CAN BE DONE

In  Budana v The Leeds Teaching Hospitals NHS Trust & Anor [2017] EWCA Civ 1980 the Court of Appeal decided that a CFA can be assigned from one solicitor to another.

THE CASE

The claimant was injured. She entered into a conditional fee agreement with a firm of solicitors in order that she could pursue her claim. The first firm of solicitors ceased carrying out personal injury work and the claimant was transferred to a second firm.  The issue before the court was whether the initial CFA could be transferred. The District Judge held it could not be. This was a “leapfrog” appeal directly to the Court of Appeal.

THE JUDGMENT

The judgment considered contractual issues and novation.  Here we look briefly at the “broad interpretive” approach.

This can be seen in the judgment of Lord Justice Davis

  1. This, I accept, then involves a broad interpretative approach to the meaning of s. 44(6) and Article 6. However, on reflection, I consider that a broad, purposive approach is justified here. It accords with the clear policy underpinning the transitional provisions of LASPO. As Mr Bacon and Mr Holland submitted and as I agree (in concurrence with Gloster LJ) the contrary approach would tend to frustrate the policy underlying the legislation. The consequence of this contrary approach would, for instance, connote that persons in the position of the claimant would forfeit the rights which they had prior to 1 April 2013 whilst potentially also not obtaining the mitigating benefits available to those entering into their arrangements after 1 April 2013. That surely would be perverse. And I do not think that this point is sufficiently met by the assertion that it was open to parties here to finalise all their arrangements prior to 1 April 2013 or to make some other arrangements.

  2. I ought, perhaps, to say that I am all the readier to adopt a broad and purposive approach to this issue of statutory interpretation on the basis and for the reasons advanced by Gloster LJ given that, as will be gathered, I have, for myself, been ready to adopt a broad approach, in the context of CFAs, to the issue of assignment/novation. I regard these two approaches, at all events, as consistent.”