News in brief – 06.12.2018

Latest version of ACL bill goes live

Version 20 of the ACL’s electronic bill is now available on the website. It fixes a few minor errors and user issues.


Success fee recovery in defamation to end

The government unexpectedly announced last week that it is to abolish the recoverability of success fees in defamation cases – but retain it for after-the-event (ATE) insurance premiums.

The Ministry of Justice’s (MoJ) decision on costs protection in defamation and privacy cases came five years after it consulted on the issue.

Lord Justice Jackson had recommended – and the Leveson report later supported – retaining costs protection in defamation cases and it was one of the few exemptions from the general abolition of recoverability in 2013.

The MoJ has ditched the proposal in the consultation to introduced qualified one-way costs shifting (QOCS) in defamation and privacy cases to some extent, depending on the wealth of the party seeking protection.

Instead, it is to make success fees non-recoverable for cases starting after 6 April 2019. “This will further help to control the costs of these cases and will also give effect to our legal obligations under the MGN v UK judgment of the European Court of Human Rights.

“However, given that the government agrees there is merit in having a costs protection regime in place for these cases, we will maintain, at least for the time being, the regime of recoverable ATE insurance premiums… The ATE regime enables parties with a good case to litigate and discharge their article 10 rights (freedom of expression) without the fear of having to pay potentially ruinous legal costs if their case fails.”

In a statement to Parliament, Lord Chancellor David Gauke said this would protect access to justice and discourage weaker cases “as these are unlikely to be insured”.


Boxing promoter loses CFA assignment appeal

Boxing promoter Frank Warren has been refused permission to appeal a costs judge’s ruling that the assignment of two conditional fee agreements (CFAs) – under which he owed his solicitors nearly £1m – was valid.

The High Court ruled that he had no prospect of successfully arguing that the CFAs had not been validly assigned to national law firm BLM after his previous solicitors closed, nor that Master Leonard had been wrong to apply the Court of Appeal’s ruling on assignment, Budana. The master had been ruling on a preliminary point ahead of the detailed assessment.

The CFAs were assigned some weeks after PSB ceased to practise on 30 September 2013, but backdated to 1 October 2013.

Mr Justice Pepperall, sitting with Master Haworth as assessor, said: “In my judgment, the master was right… to regard there to be no material distinction between a law firm’s ceasing to carry out personal injury work (as in Budana) and a firm’s ceasing to practise (as in this case).

“Secondly, the master was also right to hold that PSB Law was not in breach (let alone repudiatory breach) of the CFAs, but that – even if it had been – such agreements would not have been terminated unless Mr Warren had accepted the alleged repudiation. Here, he instead consented to the transfer of the CFAs to Hill Dickinson.”

The judge also found “no sensible distinction to be made” between the case and last year’s Supreme Court case of Plevin, where the defendant argued for ineffective assignment on two occasions when the claimant’s solicitors reorganised itself, first into an LLP and then into a limited company.

Pepperall J said: “In my judgment, there is no valid distinction between PSB’s ceasing to practise altogether and the closure of the partnership in Plevin.

“In both cases, the firm with which the client entered into the CFA ceased to practise, and yet, in Plevin, the Supreme Court had no truck with the argument that there had not been a valid assignment.”

He concluded that the proposed appeal had no real prospect of success and that there was no other compelling reason why it should be heard. Accordingly, permission to appeal was refused.

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Costs News
Published date
06 Dec 2018

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