Material breach in CCFA

Jones v Caradon Catnic Ltd [2005] EWCA Civ 1821; NLJ 7 April

The claimant recovered damages for repetitive strain injury and was awarded costs. He was funded by his trade union and his solicitors entered into a collective conditional fee agreement (CCFA). They completed the risk assessment, the constituent parts of which came to 120%, and this was the success fee claimed in the bill of costs. The maximum recoverable success fee being 100%, the paying party contended that there had been a material breach of s58(4)(c) of the Courts and Legal Services Act 1980. The court rejected the solicitors’ contention that because the CCFA contained a provision that the success fee would ‘in no case … be more than 100%’, there was in fact a cap limiting the success fee to 100%. The court held that there was a clear breach in having a statement of a success fee which exceeded 100%. It was conceded during argument that there was no materially adverse effect on the consumer protection afforded to the client because there was no realistic prospect of him personally suffering as a result of the breach. It was also contended that there was no prospect of the paying party suffering because they would see the mistake straightaway and in those circumstances the court should hold that the breach was immaterial.