CONDITIONAL FEE AGREEMENT IS ENFORCEABLE AFTER DEATH: HIGH COURT JUDGMENT TODAY

In Higgins & Co Lawyers Ltd -v- Evans [2019] EWHC 2809 (QB) Mr Justice Pushpinder Saini overturned a decision that a conditional fee agreement was not enforceable after death.

THE CASE

The deceased had signed a CFA agreement with the claimant lawyers.  The CFA followed, largely, the Law Society Model.

“This agreement automatically ends if you die before your claim
for damages is concluded. We will be entitled to recover our
basic charges up to the date of your death from your estate. If
your personal representatives wish to continue your claim for
damages, we may offer them a new conditional fee
arrangement, as long as they agree to pay the success fee on our
basic charges from the beginning of the agreement with you.”

The Master decided that the agreement was not enforceable after death and no costs were recoverable from the client.

 

THE SOLICITOR’S SUCCESSFUL APPEAL

The solicitor appealed. The Master’s decision was successfully overturned on appeal.   This was a somewhat unusual appeal in that the respondent introduced new matters that had not been before the Master.  The judge considered the new issues. The respondent’s new points were to no avail.

THE KEY FINDINGS

  • The judge erred in finding that the case fell foul of the Interfoto principle.
  • The clause was not “unusual and onerous”.
  • The clause was not rendered unenforceable under Section 62 of the Consumer Rights Act 2015.

THE RESULT

The judge allowed the appeal. The CFA was enforceable.

I am grateful to Steve Cornforth for drawing my attention to this decision.