Radford & Anor v Frade & Ors

A solicitor’s conditional fee agreement is construed objectively, by reference to the agreement read as a whole and its factual and contractual context. A risk assessment forming part of the contractual package may materially inform the scope of the retainer. Where the agreement is deliberately confined to identified procedural applications, it does not extend to later merits-based work merely because that work also seeks dismissal of the proceedings. If the original retainer is replaced by an unwritten conditional fee arrangement, the solicitor cannot recover under it where the statutory writing requirement applies. Counsel’s fees are recoverable only for work authorised within the scope of the client’s retainer. A post-order variation cannot retrospectively increase the costs liability recoverable from the paying party.

The defendants appealed from rulings by Master Haworth, Costs Judge, in detailed assessment proceedings concerning the claimants’ liability for solicitors’ and Counsel’s costs. The defendants had initially instructed solicitors under a conventional retainer and later entered into conditional fee agreements covering procedural challenges concerning service, jurisdiction, the injunctions and related relief.

The Costs Judge held that the solicitors’ CFA ended when those procedural issues were resolved by consent on 23 May 2012. He also held that Counsel’s fees incurred thereafter, and fees relating solely to the corporate defendants, were not recoverable. The issues were whether the CFA covered later summary judgment work, whether the earlier retainer survived outside the CFA, and whether Counsel’s CFA or a later deed supported recovery.

1. Appeals dismissed. The appeals were reviews under CPR 52.11(1) and (3)(a), not rehearings. The question was whether the Costs Judge’s rulings had been shown to be wrong.
2. The CFA was construed objectively, applying the principles stated in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896. The court was required to consider the whole contractual package and the relevant factual matrix. The risk assessment was part of the contractual documentation, not an extraneous document. Jones v Wrexham Borough Council [2008] 1 WLR 1599 supported that approach.
3. The CFA’s wording, read in context, covered the procedural applications then identified concerning service, jurisdiction, discharge of the injunctions, damages under the cross-undertaking and related relief. It did not cover the much later application to strike out or for summary judgment, nor the defence of the claim or counterclaim. The CFA therefore ended when the procedural “win” was achieved by the consent order of 23 May 2012.
4. The August 2011 CFA replaced the earlier conventional retainer. The subsequent conduct indicated an implied conditional fee arrangement, under which payment depended on success, rather than a conventional retainer requiring payment win or lose. That unwritten CFA could not be enforced because of section 58(3)(a) of the Courts and Legal Services Act 1990.
5. Counsel’s fees were payable under the solicitors’ CFA only where the work fell within its scope. The solicitors had no authority under that agreement to incur liabilities for work outside it. Counsel’s CFA did not establish that the corporate defendants were clients, and there was insufficient evidence for rectification.
6. A retrospective variation made after the costs orders could not increase the liability recoverable from the paying party. Following Kellar v Williams [2004] UKPC 40 and Oyston v The Royal Bank of Scotland plc [2006] EWHC 90053 (Costs), the relevant liability crystallised when the costs order was made. The Solicitors’ Costs Appeal and Counsel’s Fees Appeal were both dismissed.

• High Court (Queen's Bench Division): Master Haworth, Costs Judge, made the November Ruling on 5 November 2015 and the January Ruling on 20 January 2016. Mr Justice Warby dismissed both appeals and upheld the rulings.