The Issues:

During the course of a detailed assessment, the Defendant asked to see the Claimant’s CFA, although the Defendant had not at that stage raised any specific point regarding it – they simply wished to see it.

Held:

The Court’s power to order disclosure (rule 47.14 CPR and Para 40.14 of the Costs Practice Direction) did not arise until after Detailed Assessment had commenced and the paying party had first raised a “genuine dispute” on the CFA. If a “genuine issue” is raised, the “Pamplin procedure will apply. (Pamplin -v- Express Newspapers Ltd [1985] 1 WLR 689 – since a CFA is a privileged document between solicitor and client, the Court has no power to force disclosure of it. If a Defendant raises an issue the Claimant can decide whether to disclose the CFA to prove his case. If the Claimant does not disclose the CFA the Court can take account of the fact that the Claimant may have a legitimate interest in not disclosing the CFA).

Comment:

In Hollins v Russell (2003) the Court of Appeal indicated that CFAs should normally be disclosed (although the Defendant still had to raise a genuine dispute before taking matters any further). Hollins was decided however when the CFA Regulations were in force (pre November 2005). At that time there were many possible ways in which a Claimant’s solicitor might slip up and fail to enter into a valid CFA, and it appears that the Court had this in mind when deciding that CFAs should be disclosed. The Master in this case did not specifically decide on whether Hollins applied to CFAs signed after November 2005, however such CFAs need now only be in writing (Section 27 Access to Justice Act 1999), in order to be valid – the other procedural requirements were all repealed in 2005. This being so, Counsel for the Claimants certainly argued that once the Claimant confirms that the CFA is in writing, it is difficult to envisage how a genuine issue could be raised on it, and it is therefore unlikely that a CFA signed after November 2005 would ever need to be disclosed.

It is also relevant to note that CFAs signed under the regulations contained much more sensitive information than those used after November 2005 (for example they contained details of the solicitor’s interest in any ATE policy they recommended). Claimant solicitors were therefore quite rightly reluctant to disclose a document which would simply provide the Defendant with ammunition for a potential challenge. Since CFAs used after November 2005 are unlikely to contain information which Claimant solicitors would be reluctant to disclose (certainly those based on the standard Law Society model) the question of whether or not to disclose the CFA is much less sensitive.

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