Why the abolition of success fee recoverability will NOT be retrospective

Retro image

Not Retro at all

A view has been circulating that the effect of a proposed amendment to (the also proposed but pretty much certain) c43 of the Legal Aid, Sentencing and Punishment of Offenders Bill, would be to make the end of recoverability of success fees under a Conditional Fee Agreement retrospective.

I don’t agree. By my reckoning, the amendment is intended to deal with the potential difficulties caused by Collective Conditional Fee Agreements.

It is not easy to glean the effect of amendments owing to the impenetrable way in which they are presented (in this day and age it ought not to be difficult to produce the revised version so we all knew what was being proposed easily but I digress) so I will go step by step.

The original wording in c43 provides at subclause (6):

 The amendment made by subsection (4) does not apply in relation to a success fee payable under a conditional fee agreement entered into before that subsection comes into force.

The proposed amendment as tabled says:

… leave out from “not” to end of line 32 and insert “prevent a costs order including provision in relation to a success fee payable by a person (“P”) under a conditional fee agreement entered into before the day on which that subsection comes into force (“the commencement day”) if—

(a)   the agreement was entered into specifically for the purposes of the provision to P of advocacy or litigation services in connection with the matter that is the subject of the proceedings in which the costs order is made, or

(b)   advocacy or litigation services were provided to P under the agreement in connection with that matter before the commencement day.”

What I therefore believe to the revised subclause (6) is as follows (I’ve left the old bit in for ease of reference):

The amendment made by subsection (4) does not apply in relation to a success fee payable under a conditional fee agreement entered into before that subsection comes into force.  prevent a costs order including provision in relation to a success fee payable by a person (“P”) under a conditional fee agreement entered into before the day on which that subsection comes into force (“the commencement day”) if—

(a)   the agreement was entered into specifically for the purposes of the provision to P of advocacy or litigation services in connection with the matter that is the subject of the proceedings in which the costs order is made, or

(b)   advocacy or litigation services were provided to P under the agreement in connection with that matter before the commencement day.

If that is right then what I consider subclause (6) will mean is that the Court will not be prevented from including a success fee where the CFA is entered into before the commencement date (CD) where

either:  The CFA relates specifically to that case (so, it won’t apply to costs in another case covered by the same CFA; this will exclude work on later case under a CCFA entered into before the CD);

or:        Work was actually done before the CD (so, the CFA need not have related specifically to that claim i.e. it will cover cases done under a CCFA entered before the CD which have started)

All of this hinges on the meaning of leave out from “not” to end of line 32. Does that mean the word “not” comes out or only the words following “not”? My view is it has to be the latter for 2 reasons.

First, as it happens it would make very little sense for it to be otherwise. Leaving aside the inelegant result of “does prevent” when “prevents” would be correct, the subsidiary provisions are wholly counterintuitive if the intention were to deny the success fee rather than permit it.

Secondly, rightly or wrongly in terms of strict interpretation, the convention for other amendments supports the view that from “[a word]” means you start from the word after the cited word.

This is evidenced by another tabled amendment, number 74, which deletes various provisions from “Kingdom”. If the word Kingdom were to come out then it would leave only United which would clearly be nonsense.

 

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2 Comments

Filed under Comment, Costs

2 responses to “Why the abolition of success fee recoverability will NOT be retrospective

  1. Pingback: Retrospective revocation – Revisited |

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