Various Claimants v Gower Chemical and others
28 February 2007
[2007] 4 Costs LR 647
Citation: Cardiff County Court 28th February 2007, [2007] 4 Costs LR 647
Facts:
Thompsons acted for a number of claimants in claims arising out of a chemical spillage in 1996. They acted pursuant to the CCFA between the claimants' union and Thompsons. The defendants alleged that the provisions of regulation 5(1) CCFA Regulations 2000 required not only that a CCFA should contain the matters specified in regulation 5(1) but also that the legal representative should actually perform the obligations in regulation 5(1), and that those obligations were a requirement within the meaning of section 58 Courts and Legal Services Act 1990, such that a material breach would render the CCFA unenforceable. It was their contention that the risk assessments carried out by Thompsons were in material breach of regulation 5(1) and that no profit costs or success fee were therefore recoverable. At first instance Master Wright had rejected this contention declaring himself bound by Kitchen v Burwell Reed Kinghorn Ltd [2005] EWHC 1771 (QB).
Held:
(1) Thornley v Lang [2004] 1 WLR 378 applied. The acceptance of instructions in specific proceedings under a CCFA is not a separate individual CFA. A CCFA is implemented or triggered in an individual case when instructions are accepted under it.
(2) The natural and ordinary meaning of regulation 5(1) is that there must be a provision in the CCFA which complies with the specification in the regulation.
(3) Regulation 5(1) does not additionally require that the prescribed provision must be performed. Therefore the preparation and retention of conforming risk assessments is not a requirement for the purposes of section 58(3)(c).
(4) Clause 5 in the CCFA (which contained the provisions required by regulation 5(1)) was not a condition to the enforcement of the CCFA as implemented nor a condition precedent to the formation of an individual contract of retainer. Clause 5 was an innominate term whose breach would give rise to a right to damages and to a right to terminate the contract if the consequences of a breach had a serious adverse impact on the parties.
(5) Kitchen v Burwell Reed Kinghorn Ltd [2005] EWHC 1771 (QB) was correctly decided. Even if the risk assessments produced by Thompsons failed to comply with the requirements of clause 5 of the CCFA, the CCFA was not thereby rendered unenforceable.
Comment:
An important decision on the status of the CCFA Regulations and the effect of a possible breach of the term of a CCFA (revoked from 1st November 2005 but still applicable to any CCFA entered into before that date).
Jeremy Morgan QC and Judith Ayling acted for the respondents.