Garrett v Halton Borough Council; Myatt and others v National Coal Board [2006] EWCA Civ 1017; TLR 25 July

The Court of Appeal gave what it described as ‘guidance’ on CFAs concerning a solicitor’s duty to consider existing litigation expenses insurance under CFA regulation 4(2)(c) and to disclose any interest in any insurance policy he was recommending under regulation 4(2)(e). However, as both regulations were revoked on 1 November 2005, the decisions are not so much guidance but more of a checklist for those wishing to embark on satellite litigation. It will only become guidance if the long-awaited new Solicitors’ Practice Rules incorporate similar provisions. The court held in particular that the enforceability of a CFA is to be determined at the date of its commencement and not in the light of its consequences, and therefore it was not necessary for there to be any actual material detriment to the client or to the administration of justice to constitute a breach. The language of s58 of the Courts and Legal Services Act 1990 was clear and uncompromising. The statutory scheme provides that if any of the conditions are not satisfied, the CFA is not enforceable and the solicitor will not be paid. That was clear and stark. Such a policy was tough but not irrational: it was designed to protect clients and to encourage solicitors to comply with the statutory requirements. Hollins v Russell [2003] 1 WLR 2487 had done no more than deal a fatal blow to challenges on the grounds of literal but trivial and immaterial departures from the statutory requirements.