Solicitor fails in bid to recover costs after terminating CFA

CFA: Client was not in breach

The High Court has upheld a decision that a solicitor was not entitled to recover costs of £12,600 he said were owing after he terminated a conditional fee agreement (CFA).

A circuit judge found that Raymond Toms, trading as Goldbergs Solicitors, had not acted in his client’s best interests because he failed to provide proper advice in the run-up to the end of the limitation period.

In Toms (t/a Goldbergs Solicitors) v Brannan [2020] EWHC 2866 (QB), John Brannan was suing his broker, Sabre, and Mr Toms expressed confidence that Sabre was in breach of duty. They signed the CFA on 31 March 2015. The limitation period ended on 12 July 2017.

Sabre denied liability and Mr Toms promised his client further advice. At first instance, His Honour Judge Mitchell in Plymouth said the solicitor’s subsequent statement that the prospects had not changed did not count as ‘further advice’ – “It cried out for a proper reassessment of the claim,” he said.

Counsel was instructed to advise in June 2017 but no opinion was ever received and the limitation period passed without proceedings being issued. Mr Toms terminated the CFA six days later on the grounds that Mr Brannan had failed to provide instructions to issue.

HHJ Mitchell recounted how the impending expiry of the limitation period created a “frantic situation”, with Mr Toms telling his client that the claim had to be issued. At that point, Mr Brennan decided not to pursue it; the claimant said the failure to co-operate was a breach of the CFA.

The circuit judge ruled that the defendant was put in “an invidious position”, with “no proper analysis of the claim for him to make an informed decision”.

He concluded: “It is my view that the defendant was not in breach of the agreement given the circumstances. The claimant failed to act in the defendant’s best interests, or to explain properly and in a timely fashion and that is why matters got to that stage at limitation.”

Mr Toms’ appeal argued that the trial judge erred in finding that the defendant was not bound by the CFA – the permission to appeal did not allow a challenge to the findings of fact.

On this basis, Mr Justice Griffiths determined that, since the defendant was not in breach of the CFA, the terms of the CFA entitled Mr Toms to payment of expenses and disbursements, but not charges.

However, his claim was for “the recovery of professional fees”. Griffiths J said: “Therefore, the judge’s findings are fatal to the claim and support irrefutably the conclusion that he reached…

“Indeed, it does not appear to me that the decision was based on a finding that the CFA was not binding, which is the basis of the grounds of appeal. Rather, it is a finding that the professional fees claimed were not recoverable under the terms of the CFA.”

Mr Toms was recently struck off for unconnected reasons.

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