Guides & Advice

Conditional fee agreement (CFA) case update | Spring/Summer 2020

Published: 16th August 2020
Area: For the individual

Conditional fee agreement (CFA) case update | Spring/Summer 2020

Here we take a look at two recent significant cases relating to the recovery of success fees for claimants acting under conditional fee agreements in 1975 Act claims.

What is a conditional fee agreement (CFA)?

Where a potential claimant may have limited funds to bring a case, but have good prospects of success, solicitors may offer to take their case on under a conditional fee agreement, commonly referred to as a CFA or a ‘no win no fee’ agreement.

When are success fees charged?

Payment of legal fees to solicitors are conditional upon their client ‘winning’ their case, and at that point, a further success fee on top of their standard fees can also be charged to the client. Success fees are often substantial and capped at 100% of the solicitor’s base fees.

Until recently, the general position was that only the claimant's base costs could be recoverable from the defendant or the deceased's estate, and not any CFA uplift charged by the claimant’s solicitors.

Example 

Under the will of A, the entire estate worth £250,000 is left to a charity.  A’s spouse, B, brings an inheritance claim against the estate of their late husband.  The charity settles the claim for £100,000 plus costs.

B’s standard costs are £30,000 but the solicitors acting for the spouse were acting on a CFA with a success fee of 50%.

The estate would therefore pay £30,000 towards B’s standard costs. However, the £15,000 success fee would come out of B’s award of £100,000 so she would receive £85,000 after payment of all the legal fees.

Bullock v Denton and Willoughby (2020) and Re H Deceased (2020) EWHC 1134 FAM

Two recent decisions by the High Court have changed this position.

In Bullock v Denton and Willoughby and Re H Deceased, the courts have awarded the successful claimants a higher sum from the estate to compensate them for the success fees charged by their legal representatives.

Bullock v Denton and Willoughby

In the recent unreported case of Bullock v Denton and Willoughby, the claimant brought a claim against the estate of the deceased as his cohabiting partner of five years. The primary defendant (the deceased’s brother) argued that the claimant was a housekeeper and not in a loving relationship with the deceased.

However, the judge found in favour of the claimant and awarded her a life interest in a sum of £140,000 to purchase a property, together with an additional £65,000 to cover her further costs such as moving fees, white goods and payment towards historic debts.

In addition, the judge also awarded the claimant a £25,000 contribution to the success fee charged by her solicitor and counsel. The judge made this award on the basis that the claimant was entitled for these costs to be taken into account when considering her financial needs as the success fee would be a future debt.

Re H Deceased

This decision was then recently applied in the family court case of Re H Deceased (2020) EWHC 1134 (Fam).

The claimant was the estranged daughter of the deceased and had not been financially maintained by her family for more than 20 years. Despite the estrangement, the judge held that the claimant’s claim for financial provision from the estate should not be precluded solely on the basis of a lack of financial maintenance from the deceased. The judge felt that the claimant was “in a position of real need” due to suffering with mental illness and awarded her appropriately to meet her current financial needs.

The judge concluded that success fees could be recovered by claimants in Inheritance Act claims.  However this case is subject to appeal.

The impact of these cases on legacy income for charities

Ultimately, the further awards given in CFA funded cases mean further significant deductions from the estate fund, and lower distributions to any other beneficiaries named in the will.

This could have a real impact on what charities receive from the estate; in our example above, some of the £15,000 success fee would be payable by the estate, in addition to the base costs, meaning the charity receives le4ss money.

The decisions in these cases are likely to encourage people who have potential claims that would have otherwise been put off paying solicitors’ fees (and certainly their success fees) to instruct solicitors and pursue their claim. This is likely to result in a general increase in will challenges and claims brought under the Inheritance Act. If this proves to be the case, charities may find themselves in a position where they are obliged to defend more Inheritance Act claims.

Hopefully the Court of Appeal will overturn the decision in Re H Deceased and make a ruling on this point that will be binding for cases going forward.

However as the appeal won’t be heard for many months, until then, these cases will be heavily relied upon by solicitors (and barristers) acting under CFAs to try to get more money from the estate.

As a charity, what can you do?

If faced with will challenges and Inheritance Act claims, it is important to continue to pursue the necessary steps to recover the legacies and assets you are entitled to from a will - particularly in the current economic climate.

It is always advisable to seek legal advice following notification of a potential claim, as early legal intervention may help to flush out any unmeritorious claims and encourage settlement of disputes out of court.

We can guide you through the process

We understand that legacy donations form an increasingly large part of charities’ income, and to have your bequests challenged can delay and reduce that much-needed income.

With a particular specialism in representing charities, our team of experts can support you in dealing with those disputes and guide you through the process - contact Andrew Wilkinson or Debra Burton in our inheritance disputes team.

From inspirational SHMA Talks to informative webinars, we also have lots of educational and entertaining content for life and business. Visit SHMA® ON DEMAND.

Our free legal helpline offers bespoke guidance on a range of subjects, from employment and general business matters through to director’s responsibilities, insolvency, restructuring, funding and disputes. We also have a team of experts on hand for any queries on family and private matters too. Available from 10am-12pm Monday to Friday, call 0800 689 4064.

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