Court of Appeal begins hearing CFA assignment case

Besford: no CFA to transfer

The profession should soon have an answer to the question of when a conditional fee agreement (CFA) can be assigned from one law firm to another as the Court of Appeal is hearing a test case today.

Lady Justice Gloster, vice-president of the civil division of the Court of Appeal, Lord Justice Beaton and Lord Justice Davis are hearing the case of Budana v Leeds Teaching Hospitals NHS Trust, which was leapfrogged to the court of Appeal from the decision of District Judge Besford, a regional costs judge in Kingston Upon Hull County Court.

It was one of a series of lower-court ruling last year to address the issue and between them cause confusion in the profession. There was also Webb v LB Bromley, Jones v Spire Healthcare, Azim v Tradewise and Griffith v Paragon.

In Budana, DJ Besford held that the CFA was not validly assigned from Baker Rees to Hudgells Solicitors, as the agreement had been terminated prior to the assignment when Baker Rees closed its personal injury practice.

Writing to its clients ahead of the introduction of LASPO, Baker Rees said: “In light of the impending reforms, we have decided to stop handling personal injury litigation. When making this decision we were concerned to make sure that our existing clients were properly protected. To this end, we have put in place a process to transfer your case to a firm of solicitors who are specialists in personal injury litigation and who intend to continue this type of work.”

DJ Besford said: “In my judgment the letter is unambiguous. BR had ceased to handle personal injury litigation. There was no offer or suggestion that they would continue to act pending her instructions or even that they would give a reasonable amount of time for the claimant to consider the position before ceasing to act.

“In my judgment BR had taken a decision to cease to handle personal injury litigation, probably prior to the letter being sent out. The retainer had been terminated by BR. I entirely accept… that there was no CFA to transfer as of 25 March 2013.”

The judge held that he was bound by the High Court ruling in Jenkins v Young Brothers Transport Ltd [2006] EWHC 151, although he saw “much force” in the criticisms of it made by the defendant’s counsel, Roger Mallalieu.

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