The eagerly awaited Court of Appeal judgment in Hirachand was handed down last week.
When this issue crops up in a case, I find that it is incredibly difficult for one to grapple one way or the other, let alone second-guess which way the judiciary is going to decide.
On the one hand, and in the right circumstances (an applicant in necessitous circumstances), a success fee payable by an applicant to their solicitor is quite clearly a contractual debt; it is payable, and it must form part of the court’s needs-based calculation.
On the other hand, and particularly for defendants, it just seems incredibly unfair, and that the balance has been tipped in favour of the applicants.
I don’t expect to see the floodgates open, because Mr Justice Cohen took a cautious approach at the first instance on quantum. He could have awarded far more, and I think that his conservative approach to quantum was his way of trying his utmost to redress the balance when tackling such a difficult issue.
For the industry, I expect we are to see more cases involving conditional fee agreements (CFA), especially where applicants are not in necessitous circumstances, and a CFA was not their only means of seeking justice.
Read the full judgment here.