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The risk of limiting disclosure

Providing only some of the information contained in a conditional fee agreement when serving a bill of costs may not amount to compliance, warns Simon Gibbs

30 April 2012

On the front line of costs disputes between parties is the issue of whether there should be disclosure to the paying party of any conditional fee agreement (CFA) that funded the claim.

The Court of Appeal’s guidance, given in 2003 in Hollins v Russell [2003] EWCA Civ 718, was: “If the party does not wish to produce the CFA, she can theoretically undertake to prove the terms of the agreement in some other way. However, we doubt whether costs judges will in general be prepared to accept merely oral evidence of the existence of such an agreement and its terms... [We] hope that receiving parties will disclose the CFA without more ado.”

This issue is now governed by the costs practice direction at 32.5(1)(d), which deals with the mandatory information to be disclosed when serving a bill of costs: “If the conditional fee agreement is not disclosed (and the Court of Appeal has indicated that it should be the usual practice for a conditional fee agreement, reda...

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