Litigation services

Gaynor v Central West London Buses Ltd [2006] EWCA Civ 1120

The solicitor’s retainer letter included the provision: ‘If your claim is disputed by your opponent and you decide not to pursue your claim then we will not make a charge for the work we have done to date.’ The claim was pursued and the client awarded her costs. Did this provision make the agreement a CFA and thus unenforceable because it did not comply with the CFA Regulations as required by s58(1) of the Courts and Legal Services Act 1990? ‘No’ said the Court of Appeal. Section 58(1) applies to the provision of litigation services which are defined in s119(1) as:‘Any services which it would be reasonable to expect a person who is exercising, or is contemplating exercising, a right to conduct litigation in relation to any proceedings, or any contemplated proceedings, to provide.’ The work done before a decision was made not to pursue the claim was pre-litigation work, which did not constitute the provision of litigation services under s119(1). The solicitors were not exercising their right to conduct litigation and could not be said to be contemplating exercising that right until the potential defendant disputed the claim. Advising on the merits and writing a letter before action does not amount to litigation services. Therefore the agreement was not a CFA and the costs were recoverable.