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CFAs - What your client really needs to know!

CFAS – WHAT YOUR CLIENT REALLY NEEDS TO KNOW!

On 3 April 2019, the Court of Appeal considered case of the Herbert v HH Law Limited [2019] EWCA Civ 527 in which two main issues were addressed:
• Firstly, there was an issue as to what is the proper meaning and application of CPR rule 46.9(3) where a success fee under a CFA had been fixed at 100% subject of course to a cap of 25% of damages, but without any assessment of litigation risk. The question before the Court of Appeal was whether the client had expressly or impliedly "approved" the success fee of 100% so as to give rise to the presumptions in CPR rule 46.9(3)(a) and (b) that the success fee was reasonably incurred and reasonable in amount.
• Secondly, whether or not the cost of after the event insurance (“ATE”) was properly to be treated as a solicitor's disbursement liable to assessment under section 70 of the Solicitors Act 1974.

As to the first issue, the Court of Appeal determined that “approval’ in CPR rule 46.9(3) (a) and (b) meant approval given by the client following a full and fair explanation from the solicitor. Key points made by the Court were as follows:
• It is for the solicitor to show that informed consent had been provided by the client.
• A client simply signing the CFA was not evidence of a client giving informed consent. It was open to the client to argue afterwards that the documentation was inaccurate, misleading or insufficiently comprehensive regarding the success fee.
• When setting a success fee at 100% without taking account of the litigation risk of the particular case, the client should be informed that such a success fee is standard due to the solicitor’s business model and set without specific assessment of the client’s claim.
• Whilst the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) abolished the right of recovery of a success fee and CPR provisions making litigation risk a relevant factor when entering into funding arrangements had been revoked, the wording of the current CPR rule 46.9(4) means that litigation risk remains a relevant factor when a solicitor determines the success fee under a CFA.
The lessons to be taken from this judgment are:
• Ensure that the retainer letter to the client refers clearly to the basis of the success fee and how it is determined and why it is at a standard 100%.
• Ensure that the CFA is full, complete and accurate.
• Ensure that any general information documents provided to the client provide full, clear and sufficient information about the success fee.
• Confirm to the client that upon signing the CFA, this will be evidence of the client’s informed consent – attempt to do so through discussions directly with the client.
• Record the oral explanation in an attendance note and confirm in writing in a follow up letter to the client.

As further issue in this case, the Court of Appeal considered the treatment of ATE insurance premiums in relation to costs. The Court confirmed that it is wrong to regard ATE premiums as solicitors’ disbursements. In particular, the Court held that a payment qualified as a solicitor's disbursement if: -
• The solicitor was obliged to honour it irrespective of whether the client had provided funds to do pay for the ATE premium, or
• It was treated by custom and practice within the legal profession as a solicitor's disbursement.
The Court of Appeal held that ATE premiums did not meet either qualification for the following reasons:-
• The premium arose from an insurance contract in which the client was the insured and the solicitor acted as agent to the client.
• It did not arise within the solicitor's retainer.
• There was no established custom of treating ATE premium as a disbursement.
- ATE premiums did not fall within the definitions of "disbursement" or "professional disbursement" in the Solicitors Regulation Authority Handbook.

Carol Davies is a barrister at College Chambers a dynamic set of specialist barristers leading the way in the South of England. If you think Carol can offer you assistance, please contact us.

Carol Davies

Daniel Nother appointed Deputy District Judge

College Chambers are delighted to announce that Daniel Nother (1994) has been appointed a Deputy District Judge.

Daniel has been a member of College Chambers since 1996. He regularly appears in the Family Court, undertaking all aspects of Children Act work and family finances. Daniel is also Head of the College Chambers Court of Protection team. Daniel takes a hands on role in the daily running of Chambers and is pivotal to its success.

This is a fantastic achievement for Daniel and Chambers.

We are all very proud of Daniel’s appointment.

Recognition in 2018 edition of The Legal 500

We are delighted to receive recommendations in this year’s Legal 500.

 

Congratulations to Derek Marshall, Carol Davies, Anthony Hand and Tahina Akther on their individual recommendations.

 

Here is what the Legal 500 had to say:

 

Commercial, Banking, Insolvency & Chancery Law

Recent work for College Chambers “very knowledgeable” commercial group includes professional negligence claims, partnership disputes and trusts and wills matters. Derek heads up the team.

Tahina Akther – “A confident barrister who fights her client’s corner”

Carol Davies – “Very experienced in handling wills and administration of estates”

Derek Marshall – “Very experienced in commercial disputes”

 

Family and Children Law

Anthony Hand is a key name at College Chambers for family law, where the group handles a broad spectrum of public and private children law and matrimonial finance cases

Anthony Hand – “He is quick to grasp the key issues in a case”

Congratulations to Derek Marshall

Congratulations to our Head of Chambers Derek Marshall on being appointed a part time Chair of the Police Conduct Panel.

College Chambers welcomes new tenant - Elizabeth Bowden

We are pleased to welcome Elizabeth Bowden (formerly of Bell Yard Chambers) to College Chambers. If you would like any further details on Elizabeth's practice please feel free to call the clerks - 02380 230 338

Annual Child Law Lecture

Following the success of previous years, College Chambers Family Children team announces that it will be holding its annual child law lecture day on 11th October 2018. Please see events / or contact the clerks (023 8023 0338) for further details.

Congratulations to Carol Davies

We would like to congratulate Carol Davies, for successfully completing her Arbitration training. Carol is now trained as a Domestic Arbitrator with the Chartered Institute of Arbitrators, and is now a Fellow of the Institute.

Tahina Akther case reported on Westlaw

Tahina Akther was recently successful in the High Court in an application under s50 Administration of Justice Act 1985, for the removal of all the Executors in a Will to be replaced by an Independent Administrator. Further information on the Court’s findings and guidance in such cases can be found in the case report here.

Tahina Akther

College Chambers welcomes new Tenant - Edward Hurley

College Chambers is delighted to announce; Edward Hurley (formerly of No18 Chambers) has accepted an invitation to join Chambers, Edward specialises in all aspects of Civil and we will be joining Chambers Civil teams. If you have any queries about Edwards practice please do not hesitate to contact the clerks via phone (023 8023 0338) or e-mail ( clerks@college-chambers.co.uk )

Edward Hurley

New Member - Amy Oke

College Chambers is delighted to announce; Amy Oke has accepted an invitation to join Chambers following successful completion of her pupillage.

Amy Oke

Recognition in 2017 edition of The Legal 500

College Chambers are delighted to have received recommendations in this years Legal 500 both for our teams and individual members of Chambers.

 

College Chambers’ commercial team has experience in directors’ liability matters, partnership disputes, insolvency cases, and trusts and wills matters. Derek Marshall and Carol Davies are key contacts.

 

Carol Davies - College Chambers ‘Recommended for cases involving wills and administration of estates.’

Derek Marshall - College Chambers ‘His tenacity and advocacy skills never fail to impress.’

 

Family law is a key practice area at College Chambers, where the members have expertise across a range of matters. Douglas Taylor was appointed a District Judge in 2016.

 

Anthony Hand - College Chambers ‘Recommended for a broad range of family law matters.’

Simon Lillington - College Chambers ‘Well known for acting in family finance matters.’

 

Antonietta Grasso is head of the property team at College Chambers and her practice includes landlord and tenant matters, restrictive covenants, boundary disputes and adverse possession matters.

 

Antonietta Grasso - College Chambers ‘An excellent and stalwart advocate.’

 

An excellent year for Chambers and a massive congratulations to all who have been recommended in this years edition. 

College Chambers welcomes new Tenant - Roberta Holland

College Chambers is delighted to announce that Roberta Holland (formerly of 12 College Place) has accepted an invitation to join Chambers . Roberta is a family specialist and will be joining our Family Children team.

Douglas Taylor appointed District Judge

College Chambers would like to congratulate Douglas Taylor on his appointment as a District Judge. Douglas will be sitting on the Midland Circuit. The College Chambers team wishes Douglas all the best in his new role. 


Past Events & Seminars

College Chambers Breakfast Club

Event Date: Thursday 6th April 2017- from 7am- to 9am

College Chambers are launching a Breakfast Networking Club on Thursday 6th April at 7am - 9am. This event is open to all businesses and solicitors. We will be offering a continental style breakfast in a relaxed environment. This is a FREE event and spaces are  running out. If you would like to attend please email bmclachlan@college-chambers.co.uk to reserve your place.

Charity Fun Day - Saturday 22nd July at YMCA Fairthorne Manor

Event Date: Saturday 22nd July 2017- from 10am- to 5.30pm

College Chambers Charity Fun Day looks set to be a brillaint day out for all the family. There will be various activities throughout the day starting at 10am and will conclude at 5.30pm. We will be providing a hearty lunch and will also be conducting a raffle/auction with lots of amazing prizes. This day is suitable for children of all ages. We will be raising money for the YMCA.

For more information and to book tickets contact Ben McLachlan on 02380 230338 or email bmclachlan@college-chambers.co.uk

College Chambers Seminar Series

Seminar Date: Monday 24th July 2017- to

 

College Chambers are hosting a Series of Seminars in May through to July. These are hour long seminars with refreshments. These are free to attend. Please see below the Seminars that are on offer.

 

Wednesday 24th May 5.30pm arrival for 6pm start.

Carol Davies

“Ilott v The Charities - The Supreme Court chews the 1975 Act inheritance bone. But does its judgment help?”.

Carol will consider the Supreme Court’s decision and discuss the key points and whether or not they assist in the ever increasing number of claims against parents’ estates by adult children.

 

 

Wednesday 7th June 5.30pm arrival for 6pm start

Tahina Akther

"Spousal Maintenance where are we now?

Is it still fair to share income?”

This talk will look at the way in which the Courts now assess spousal maintenance, whether the sharing principle still applies to income, to what is matrimonial property and the terms of orders, such as when is it appropriate to have joint lives orders and nominal periodical maintenance. Has recent High Court cases made this area clearer or created more battleground on this thorny topic?

 

 

Wednesday 21st June 5.30pm arrival for 6pm start

Daniel Piddington

TUPE 2006 - A refresher

This session will provide a digestible overview of the application of the Transfer of Undertakings (Protection of Employment) Regulations 2006, having regard to recent tribunal decisions such as Tees Esk & Wear Valleys NHS Foundation Trust v Harland & Others. A perfect introduction to the area for new practitioners and a helpful refresher for more experienced solicitors.

 

 

Tuesday 4th July 5.30pm arrival for 6pm start

Anthony Hand

"Does Shaken Baby Syndrome Exist? - An Examination Of The Courts Changing Attitude To Non-Accidental Head Injury Cases In Care Proceedings."

In this one hour seminar, Anthony Hand will attempt to explain the mystifying world of non-accidental head injury (NAHI) cases in care proceedings. In particular has the attitude of the courts changed? Has what was once a sure fire case of NAHI, now become a more questionable outcome? And even if this was NAHI, is that game over?"

 

 

Wednesday 19th July 5.30pm arrival for 6pm start

Derek Marshall

Statutory and non-statutory duties of company directors.

“Do company directors have to maximise profits regardless of the cost to the workforce and the community?”

This and other important questions about the duties and responsibilities of company directors will be considered in my talk.

 

 

Please contact Ben McLachlan (bmclachlan@college-chambers.co.uk) to reserve your place. Spaces are limited so we suggest you book promptly to avoid disappointment.

£1,000,000 or Zero?

Seminar Date: Thursday 16th November 2017- from 5.30pm- to

ta 17.11.17

Family Finance Seminar

Seminar Date: Friday 27th April 2018- from 9.30 am- to 4 pm

We are delighted to once again be hosting our Family Finance Day at Chilworth Manor. Our Speakers

will be covering an array of topics and will are also pleased to be joined by Caroline Bayliss, a Director at Excalibur Actuaries.

Child Law Lecture Day

Seminar Date: Thursday 11th October 2018- from 9.25- to 16.30

The College Chambers Family Children team will be having its annual lecture day on 11th October 2018.

  • This is a day's course for child care lawyers, and also for lawyers undertaking private law children cases,
  • Following on from the success of previous years College Chambers is again holding a day's lecture course (5-6 hours of continuing education) dealing solely with aspects of Child Law,
  • The venue is once again Chilworth Manor, Southampton.
  • Registration will be at 9.25 with the lectures starting at 9.55am (this should give a chance for practitioners from across Dorset and Hampshire to get to the venue).
  • The cost will be £42 (inc VAT) per delegate, to include lunch and refreshments throughout the day

If you would like further details please contact the clerks either by calling 023 8023 0338 or e-mail, marketing@college-chambers.co.uk

Wave 105 Cash4Kids Cake Morning

Event Date: Thursday 18th October 2018- from 9am- to 12noon

Please do come and join us at our coffee (and cake!) morning. We are part of the Wave 105 1000 Faces Campaign and are hoping to raise as much money as possible. Hope to see as many of you as possible there.

Civil Litigation Day

Seminar Date: Tuesday 4th December 2018- from 9.30am- to 4.30pm

We are holding our Civil Litigation Day on 4 December 2018 which is being held for the first time at
the prestigious Winchester Royal Hotel. The day will offer a relaxed environment with
speakers addressing an array of interesting topics, drawing on their own practice and experience. The day will
be the perfect opportunity to meet members of our expanding civil litigation team. More importantly, a buffet
lunch, tea and coffee are all included!

Please click here for full details and a copy of the booking form.

College Chambers Christmas Cocktails

Event Date: Thursday 13th December 2018- from 6.30pm- to

CollegeChambers_Cocktails-xmas-2018_artwork.jpg

Family Arbitration Seminar - Thursday 14th March 2019

Event Date: Thursday 14th March 2019- from 5pm- to

 

We would like to invite you a seminar hosted by Derek Marshall (Head of Chambers), on Family Arbitration on Thursday 14th March 2019 at 5pm.

College Chambers has 3 Family Law Arbitrators:

Derek Marshall qualified as a Family Finance Arbitrator in 2012 under the IFLA scheme and since then he has conducted numerous private FDR Meetings and Family Arbitrations both in chambers with oral evidence and “on paper”.

Louise Harvey and Daniel Nother qualified as Children Arbitrators under the same scheme in 2016 and 2017 respectively and are able to conduct a range of Private Children Arbitrations.

All have been admitted as Members of the Chartered Institute of Arbitrators.

This seminar will discuss how Family Arbitration is still in its infancy but has the potential to release a lot of clients from the rigidity and cost of the Court process. It will also look at the reasons for encouraging the use of Family Arbitration.

Key Details:

Date: Thursday 14th March 2019

Time: 5pm

Location: College Chambers, 19 Carlton Crescent, Southampton, SO15 2ET

Cost: Free to attend

Refreshments and nibbles will be provided.

If you would like to join us, please RSVP to marketing@college-chambers.co.uk to reserve your place.

Charity Game Show Night

Event Date: Friday 29th March 2019- from 7.30pm- to

Email charityevents@college-chambers.co.uk to reserve your place. 

Family Arbitration Evening

Seminar Date: Wednesday 24th April 2019- from 5pm- to

.

Private Financial Dispute Resolutions - "Let's give it a go"

Seminar Date: Thursday 2nd May 2019- from 5pm- to

Private Financial Dispute Resolutions - "Let's give it a go"

Civil Litigation Seminar

Seminar Date: Thursday 6th June 2019- from 9.30am- to 4.30pm

College Chambers would like to invite you to our Civil Litigation Seminar, on the 6th June 2019 at
the Holiday Inn, Winchester. We hope the day will offer a relaxed environment with several
lectures across the day on an array of interesting topics. Further it will be the perfect opportunity
to catch up with colleagues, and meet new faces. More importantly, a lunch, tea and coffee are all
included!

Squatter’s rights – Is possession nine-tenths of the law?

Derek Marshall (1980)

As a litigator and as a mediator, Derek’s practice frequently takes him to boundary claims and possessory title
disputes, which are a rich source of litigation between warring neighbours. This talk will look at the resolution
of these cases and on new case law about what you have to prove in order to establish possessory title – and how to rebut such claims.

Trouble down on the farm – proprietary estoppel and a very mucky mess!”

Carol Davies (1995)

Carol is a Welsh farmer’s daughter and has a particular interest in ownerships disputes in relation to farms.
This session will look at the key and recent cases involving proprietary estoppel in farming disputes – there
have been quite a few in the last few years. Carol will aim to highlight not just the key ingredients for
proprietary estoppel cases but additional elements to address, such as lost chances and opportunities,
valuation of awards and the issue of proportionality between the expectations and the detriment. 

The changing relationship between landlords and tenants

Elizabeth Bowden (2001)

During the course of 2018 and 2019, there have been two acts of parliament that will have an impact on
landlords.
• Tenant Fees Act 2019
• Homes (Fitness for Human Habitation) Act 2018
Elizabeth will take a quick look at how the relationship between landlords and tenants has changed over the
years before taking you through the recent legislation and point out those areas that need careful
consideration whether you are acting for a landlord or a tenant.

Equality Act Claims in the County Court

Daniel Piddington (2008)

Daniel will provide a helpful reminder of how and when to utilise the Equality Act to bring claims for
discrimination outside the employment context, reviewing the key statutory provisions and recent case
authorities.

Professional Negligence: Don’t be an architect of your own misfortune!

Edward Hurley (2010)

Edward will review the duties of care owed by professionals in light of the recent decision in Freeborn v de

Almeida Marcal (t/a Dan Marcal Architects), a case which is considered to have wide ranging implications for
architects and other professionals alike. 

Costs and Case Management Conferences

Jessica Price (2014)

Jessica will talk us through preparation for CCMCs: tips, tricks and common pitfalls.
Jessica will review developments in practice and procedure as well as dispensing strategic advice as to the
preparation of Precedent H cost budgets, Precedent R budget discussion reports and draft directions.

 

Location Holiday Inn, Telegraph Way, Morn Hill, Winchester SO21 1HZ

Price £30 + vat

Please do not hesitate to contact the clerks to book your place or with any queries on 023 8023 038 or email marketing@college-chambers.co.uk