News in brief – 06.05.2021

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The Jurassic Costs Lawyer

ACL vice-chairman Francis Kendall will be walking 100km later this month when he takes part in the Jurassic Coast Challenge, starting at Corfe Castle in Dorset, through Swanage and Weymouth, and then along Chesil Beach and West Bay’s famous cliffs (of TV’s Broadchurch), with a finish line celebration in Bridport.

He is walking in aid of the Alzheimer’s Society and has already burst through his £500 target, raising £895 at the time of writing. You can sponsor him here.

 

Retaining shares was not recovery for the purposes of DBA, High Court rules

A party who retained ownership of shares that were the subject of dispute but did not recover anything from the other side was not liable to pay his solicitors anything under a damages-based agreement (DBA), the High Court has ruled.

The DBA in Tonstate Group Ltd and Ors v Wojakovski and Ors [2021] EWHC 1122 (Ch) covered a range of proceedings – including one where the claimants sought the recission of share transfers – and, using standard wording, defined ‘proceeds’ as recovering “damages, monies, costs incurred by your previous lawyers, other sums and/or derive any benefits… in or arising out of all of the current court proceedings”.

The defendant settled the shares action and retained a quarter of his shares, and his solicitors, London firm Candey, contended that this was a benefit derived in or arising out of the proceedings within the meaning of the DBA, given that the claimants had sought all of them.

But Mr Justice Zacaroli found that proceeds only included benefits the client recovered from another party. “At most, what he derived from the proceedings was the avoidance of a detriment to the extent that he retained the shares.”

He highlighted as indicators of the parties’ intention that the agreement was entitled a ‘Damages Based Agreement’ – meaning that recovering damages from another party was an “essential feature” – and that the DBA provided that Candey would be entitled to no payment if Mr Wojakovski did not recover any monies.

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Costs News
Published date
05 May 2021

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