Utting – v – McBain [2007] EWHC 90085 (Costs)

The Claimant appealed against a decision to disallow all the costs claimed in a Bill due to the CFA failing to comply with Regulation 3(1)(b) of the CFA Regulations 2000 and therefore being unenforceable.

The CFA failed to state the deferment element of the success fee. As in Garrett v Halton BC [2006] EWCA Civ 1017, assessing whether the breach was material was not determined by whether the breach had a prejudicial effect on the client. Master Campbell was of the judgment that failure to state the level of the postponement charge was one of substantial compliance and a material departure had occurred from requirements of the Regulations in force at the time. This had an adverse effect on the protection afforded to Mr. Utting and on the proper administration of justice. Therefore neither the base costs nor the success fee claimed in parts 2, 3 or 4 of the Claimant’s Bill, amounting to £38,632.15, were allowed.