The long-awaited appeal in Cam v Belsner concerning what and how solicitors can charge their clients started and then stopped abruptly this week. Despite being foreshadowed in the appellant’s Grounds of Appeal and Skelton Argument, it became clear during the hearing that that the question raised – whether a retainer (CFA) entered into in an RTA claim that settled in the portal was a contentious or non-contentious agreement – deserved more scrutiny by the Court of Appeal than the time allotted, resulting in the appeal being adjourned to dates tbc (but this side of summer). The proper categorisation of the solicitor’s retainer is critical because of the differing approaches to charging clients.
It seems that the bench somewhat belatedly realised that the questions posed by the appellant (a) were far from straightforward (b) their determination could affect tens of thousands of claims a year and (c) turned on the problematic interaction of part III of the Solicitors Act 1974 (which defines contentious and non-contentious work) with fixed costs rules drafted some 35 years later.
These are issues of significant importance to the legal profession generally and to claimant solicitors in particular. The precise basis on which a client can be charged, the status of CFAs and the interaction with the Pre-Action Protocols (such as the one applying to RTA portal claims) are of renewed relevance given the imminent extension by the MoJ of fixed recoverable costs to claims up to £100,000 in value and the ongoing exploration of alternative funding agreements such as Damages-Based Agreements.
Predicting the outcome of any particular claim is never a terribly wise move. That said, I’m confident that this case – however it is decided – will add further weight to the call for a root and branch review of the Solicitors Act to make it more compatible with modern litigation practice and client retainers.
Paul Wainwright, Partner & Head of Costs