A Missed Opportunity for Assignment of CFAs?

John M HayesThe Supreme Court has allowed the recovery of a pre-LASPO success fee and after-the-event (ATE) premium where the conditional fee agreement (CFA) and insurance had to be extended after 1 April 2013 to cover appeals.  A copy of the Judgement on Plevin v Paragon Personal Finance Ltd [2017] UKSC 23, can be found here. It is a significant ruling on LASPO’s transitional provisions although it seems that both parties had accepted that the CFA could be validly assigned from the outset and it was just the validity of that assignment that formed the subject of the technical challenge.

Christopher McClure, Regional Manager at John M Hayes Manchester Office (who has written previously on the complex issue of assignment of CFAs), says that this decision will be “welcome news to receiving parties who, having taken out an ATE premium pre-LASPO, can now authoritatively seek to recover any post-LASPO ATE ‘top up’ from an unsuccessful opponent.”

Marc Banyard Costs Lawyer at our John M Hayes Cardiff office is less enthusiastic suggesting a “disappointing missed opportunity” to finally put the “hot potato” of CFA assignment to bed.

“We might infer from their Lordships’ apparent short shrift with the argument that was taken and the fact that the Appellant’s legal team accepted that the CFA can be validly assigned in principle that the writing is on the wall for paying parties who look to exploit this technical argument.

Interestingly their Lordships (Lord Hodge dissenting) upheld recovery of both the success fee and ATE top-up where pre-LASPO funding arrangements had been extended to cover post-LASPO appeal proceedings.  Even Lord Hodge accepted the sense of a transitional provision that so allowed whilst finding himself unable to read such a thing into the words utilised by Parliament.”

Related Posts from Christopher McClure

1. The Assignment of Conditional Fee Agreements

2. Seconds Out Round Two

3.  Another Twist in the Yellow Brick

Christopher McClure is Regional Manager at Manchester Office and is frequently instructed by clients to advise in relation to technical costs queries and regularly undertakes work in relation to the assignment of CFAs, QOCS, the various Portals and costs budgeting. Christopher delivers internal and external training and is a seasoned advocate who possesses a sound working knowledge of the Civil Procedure Rules. His advocacy experience extends to both costs-related advocacy (including hearings at the SCCO) and civil matters generally. Christopher is a contributor to the Personal Injury Brief Update Law Journal. and can be contacted on 0161 835 4087 or e-mail Christopher direct on: christopher.mcclure@johnmhayes.co.uk

Marc Banyard Costs Lawyer is based at our Cardiff office.  He has acted as an expert witness on behalf of the SRA and Police Authorities and is a specialist in costs before HM Planning Inspectorate, Arbitration costs, Trustee costs, cases with inter-jurisdictional elements, costs in the Republic of Ireland, acting for Litigants in Person, costs in the Military Courts, costs before the Adjudicator to HM Land Registry and solicitor/client disputes. Contact Marc on 02920 394043 or e-mail: marc.banyard@johnmhayes.co.uk

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