Higgins & Co Lawyers Ltd v Evans

A signed conditional fee agreement ordinarily binds the signatory to its terms. The Interfoto principle does not generally require a particularly onerous or unusual term to be separately drawn to the signatory’s attention where the document was knowingly signed without pressure, misrepresentation or other improper conduct.

A standard death provision in a conditional fee agreement, entitling solicitors to recover reasonable basic charges accrued before the client’s death, is not necessarily unusual or onerous. The contractual cap calculated by reference to damages received does not apply where death ends the agreement before damages are recovered. Such a term may nevertheless be assessed for fairness under the Consumer Rights Act 2015.

The claimant solicitors appealed against Master McCloud’s decision in a solicitor-client costs assessment. The Master had held that the death clause in the conditional fee agreement was void and unenforceable under the Interfoto principle because it was unusual and onerous and had not been fairly brought to the deceased client’s attention.

The deceased had instructed the claimant to pursue an asbestos-related personal injury claim under a Law Society model conditional fee agreement. He died before the claim concluded. The claimant sought its basic charges from his estate. The appeal concerned the construction of the death clause, its incorporation under common law, and its fairness under the Consumer Rights Act 2015.

1. Construction. The death clause had a single, clear meaning. When the client died before the claim concluded, the agreement ended automatically and the solicitors became immediately entitled to recover their basic charges accrued up to death from the estate. The overall cap calculated by reference to damages received applied to the different situation in which the client won, and did not prevent recovery where death occurred before damages existed: [57]-[67].
2. Interfoto principle. The principle concerns incorporation by notice, not a general common-law doctrine of contractual unfairness. A person who knowingly signs a document intended to have legal effect is generally bound by its terms, whether or not the terms were read. An exception may arise in an extreme case involving pressure, misrepresentation or comparable improper conduct. Mr Hughes signed a document which identified itself as a binding legal agreement and invited him to read it carefully. The notice requirement was therefore satisfied: [69]-[85].
3. The clause was also a standard provision derived from the Law Society model agreement and reflected in other personal injury CFAs. It was neither unusual nor sufficiently onerous or draconian to engage the doctrine. The fact that it might operate harshly did not meet the high threshold: [86]-[90].
4. Consumer fairness. The CFA was a consumer contract under section 61(1) of the Consumer Rights Act 2015. The clause was clear and transparent, formed part of the overall allocation of risk in a CFA, and did not create the alleged significant imbalance contrary to good faith. It did not give the solicitors a discretionary power to terminate within Schedule 2, Part 1, item 7. Any fees remained subject to assessment for reasonableness under section 70 of the Solicitors Act 1974: [91]-[103].
5. The appeal was allowed.

• High Court (Queen’s Bench Division): Appeal from Master McCloud’s order dated 5 February 2019 allowed. The Master’s finding that the death clause was void and unenforceable was overturned: [2019] EWHC 2809 (QB).