The courts

Meanwhile the courts had been concerned with the lawfulness of solicitors agreeing not to charge their clients if they lost, and to charge no more than their usual rates if they won. Contrary to the views of many, it was held by the QBD Divisional Court in British Waterways Board v Rose Norman [1993] 26 HLR 232, that not only was such an agreement unlawful, but that where there was no reasonable prospect of the client being able to pay any costs, it could be imputed, unless there were a specific agreement that if the case were lost the solicitors could look to the client for payment. Worse was to come. In Aratra Potato Co Ltd v Taylor Joynson Garrett [1994] 4 All ER 695 QBD it was held that an agreement which provided for a 20% reduction of the solicitors’ fees in respect of unsuccessful work was also unenforceable as a contingency fee. Then came Thai Trading Co (a firm) v Taylor [1998] 3 All ER 65 in which the Court of Appeal (Kennedy, Millett and Hutchison LJJ) reversed BWB v Norman and Aratra v Taylor, holding: