Law firm entitled to fees from CFA after claimant’s death

Saini: Risk to access to justice

A law firm which guaranteed clients there would be “no hidden, nasty surprises” could claim over £30,000 in fees from the estate of a deceased asbestosis claimant, the High Court has ruled

Mr Justice Pushpinder Saini said Higgins & Co relied on a clause in its conditional fee agreement (CFA) which incorporated Law Society terms and was “widely used” by personal injury lawyers.

He said the clause, which automatically ended the CFA on death and allowed the law firm to recover “basic charges” up to that date from the estate, was “clear and transparent”.

Saini J said it was “phrased in simple language which requires no legal training to follow” and “was not hidden” from retired engineer Frank Hughes.

Although the message of the “pre-contractual material” used by Higgins & Co was ‘no win, no fee’, reading and signing the CFA with its “clear provisions” superseded any “claimed earlier understanding” of Mr Hughes.

“The calculus of risk in a personal injury action fundamentally changes when a claimant dies.

“The clause should not be read in isolation but it part of the overall ‘deal’ in the CFA which reflects a ‘give and take’ in circumstances where professional services are being provided at a risk of nil payment being received.”

Saini J warned that without the ability to include terms which protected the solicitor “in certain circumstances”, such as death or termination of instructions, “one can identify why some solicitors would not be prepared to enter into such agreements and access to justice – and in consequence, consumers rights generally – would be impaired”.

The judge ruled that, as a result, the clause was not an unfair term under Section 62 of the Consumer Rights Act 2015.

The High Court heard in Higgins & Co Lawyers v Evans [2019] EWHC (QB) that Mr Hughes, a retired engineer, was diagnosed with asbestosis in March 2016, at the age of 89.

He instructed the firm the same month, signing the CFA in his home. Mr Hughes died in April 2018.

Saini J said the firm could have continued to act on behalf of the estate but declined, and the parties were “not agreed as to why the firm declined” – a dispute he did not need to resolve.

Counsel for Dr Evans, executor of Mr Hughes’ estate, argued that the estate was being asked to pay £30,400 in fees without the law firm having recovered “anything” in damages.

Ruling in February this year, Master McCloud held that the clause relating to death of the claimant was unenforceable both under the Interfoto principle, and on the grounds that it was “unusual and onerous and was not brought reasonably and fairly to the attention of the deceased”.

The Interfoto principle can be applied to determine whether a clause has been properly incorporated if it has not been the subject of “appropriate notice”.

The master assessed the fees to be paid by Dr Evans as “nil”.

Saini J said the respondents had since raised an additional argument that the clause was unenforceable as an unfair term under section 62.

On the Interfoto principle, the judge said the case was “very far removed” from cases involving incorporation of terms in a parking ticket or of implied representation as to the nature of a document where the principle might apply.

“There is no principle of common law that the firm’s agent was in these circumstances obliged to draw the specific clause to Mr Hughes’ attention when he had in fact signed the CFA having been warned by its terms that it was a binding document.”

Saini J said Mr. Hughes “willingly signed the CFA without being pressured”, and the CFA “said on its face that it was a binding legal agreement which the client was asked to read carefully before signature”. Mr Hughes was also given a chance to ask questions.

The judge said a clause which was based on a standard model agreement, and had been “used in countless personal injury claims, including mesothelioma claims”, could not be regarded as unusual. The fact it might operate harshly did not make it ‘onerous’.

Saini J allowed the appeal.

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