Partner & specialist in professional practices Paul Bennett has written this article on The Assignment of CFAs.
In Denise v Spire Healthcare Limited Case No: A13YJ811, it was decided that CFA’s cannot be assigned. However, on appeal, this decision has been reversed by HHJ Graham Wood. This was a civil appeal to the High Court.
HHJ Graham Wood stated that he could not depart from the case of Jenkins v Young Brothers [2006] EWHC 151 and that the district judge was wrong to not regard Jenkins as providing “a ratio decidendi which was binding upon him, and unequivocal, and proceeding on the basis that it was necessary for a court to establish the same context of trust and confidence which had prevailed in that case. In my judgement there is a sufficiently clear ratio, even if the present facts are distinguishable”.
It was also stated that it appears that a higher appellate court (such as the Court of Appeal) may become engaged because the question of whether a CFA can be assigned is a matter of public importance and wider consequence.
The issue is important for CFAs that were entered into before 1 April 2013 because it is the only way to ensure that the success fee and other costs remain recoverable from the opponent. If it is found that a particular CFA has not been assigned, it would mean that costs will be irrecoverable. We have advised a number of personal injury firms on this issue already.
If you have any questions in relation to your CFA, please do not hesitate to contact our professional practices department.
Paul Bennett
Partner in professional practices and employment law
Aaron and Partners LLP
01743 453685
