Birmingham City Council v Forde [2009] EWHC 12 (QB)

Posted on Tuesday, January 13th, 2009

This was a matter where the Claimant had entered into 2 CFAs, in respect of a housing matter. The 2nd CFA had been taken out because there was concern that the Defendant would argue that the 1st CFA was unenforceable and to also claim a success fee, which had not been claimed in the 1st CFA.

It was originally found that the 1st CFA was terminated and replaced by the 2nd CFA and that the 2nd CFA was enforceable and retrospective (it covered work undertaken from the date of the 1st CFA). It was reasonable for the Claimant to enter into the 2nd CFA and there was found to be no undue influence on the Claimant.

Therefore, the Claimant could recover (subject to assessment) the base costs claimed in the 2nd CFA but without a success fee.

However, the Defendant appealed the decision. On appeal, it was found that the 1st CFA was not terminated and replaced by the 2nd CFA, but it was also found that the 2nd CFA could be retrospective and was enforceable and that if the 2nd CFA was not enforceable, the 1st CFA could be relied upon, with no breach of Regulation 4. However, it was not accepted that a retrospective success fee was contrary to public policy.

In addition, it was confirmed that it was not mandatory to notify opponents of any additional liabilities until the issue of proceedings and that additional liabilities are recoverable up to the issue of proceedings, despite no notice being given.
The appeal was therefore dismissed.

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