Boxing Clever on assigning a CFA

We have another celebrity case illuminating the field of costs law, following in the footsteps of previous articles we have written about Brian May of Queen and Sir Cliff Richard. This time, the celebrity involved is Frank Warren, the famous boxing promoter and deals with the thorny question of assignment of CFA’s.

In Warren v Hill Dickinson LLP [2018] EWHC 3322(QB) the High Court was being asked to consider Mr Warren’s request for permission to appeal against the findings of Master Leonard in the Senior Courts Costs Office. Mr Warren had sought a solicitor/client assessment of fees claimed by his former Solicitors of over £900,000. Master Leonard had ruled against Mr Warren on 2 preliminary issues, the 1st being Mr Warren’s claim that he was not liable because he had not been successful in the underlying claims and the 2nd being his assertion that the CFA’s had not been validly assigned. Mr Warren sought permission to appeal against the latter finding.

The matter came before Pepperall J sitting with Master Howarth as an assessor. The grounds of appeal were that the CFA’s were not capable of assignment (as found by the Master) due to the Master also having found that the original solicitors had ceased to practice and, 2nd, that the Master was not bound by the ruling in Budana v Leeds Teaching Hospital NHS Trust [2017] EWCA Civ 1890 which was distinguishable or on the basis that the assignment had not been undertaken with Mr Warren’s informed consent.

In Budana the Court of Appeal had held that the CFA had not been terminated when the original Solicitors had ceased to practice and that despite the agreement being novated in April 2013, the success fee remained payable.

Applying the same principles, Pepperall J agreed with the Master that the date of the original Solicitors ceasing to practice was after Mr Warren had agreed to take the case elsewhere; that the failure to complete an entire contract did not in these circumstances amount to a breach of contract and that even if it did amount to a repudiatory breach, in the absence of Mr Warren accepting the alleged repudiation, it was of no practical effect.

In relation to whether Budana could be distinguished, the Judge noted that Mr Warren’s argument might have been successful if he could have established that:

1. Mr Warren had chosen not to agree to the ;

2. The original Solicitors had then ceased to practise rather than hiring in a lawyer to conduct Mr Warren's cases; and

3. Mr Warren had then accepted such repudiatory breach

He therefore concluded:

“Upon his findings, Master Leonard was clearly entitled to find that these CFAs had been transferred to Hill Dickinson with Mr Warren's informed consent. Indeed, there were obvious advantages. Novation ensured that Mr Warren continued to be represented by Ms Basha in whom he had confidence and who knew his cases. Further, it ensured that he still had the benefit of the CFAs and, had matters turned out differently, he might still have been able to recover success fees from his opponents since the novated CFAs were pre-LASPO agreements”

As a consequence, it was found that the proposed appeal had no realistic prospects of success and there being no other compelling reason to allow it to proceed, permission to appeal would be denied.

The case therefore serves a useful purpose in exploring the bounds of the Budana decision, whilst also affirming the principles of that case in relation to the ability to assign and accordingly recover success fees.