CFA NOT FRUSTRATED BY CAPACITY: BLANKLEY APPEAL DRAWS A BLANK FOR DEFENDANT

In Blankley -v- Central Manchester and Manchester Children’s University Hospitals NHS Trust [2015] EWCA Civ 18, where judgment was given today, the Court of Appeal upheld the first instance decision that a claimant’s subsequent incapacity does not invalidate a claimant’s conditional fee agreement

THE CASE

The claimant entered into a conditional fee agreement with her solicitors in 2005. She subsequently lost capacity. The Regional Costs Judge held that the incapacity terminated the agreement. That finding was overturned by Phillips J.

KEY POINTS

  • The claimant’s loss of capacity did not lead to the conditional fee agreement being frustrated.
  • The parties anticipated that instructions could be given by persons other than the claimant.

THE COURT OF APPEAL

The Court of Appeal upheld the decision of Phillps J.  Lord Justice Richards stated:-

  1. The defendant’s case that the CFA was frustrated depends on the proposition that the obligation to give instructions was personal to the claimant and could not be discharged by the giving of instructions by a receiver/deputy acting on her behalf. Whilst a solicitor’s retainer is in one sense a personal contract, I very much doubt whether it requires instructions to be given by the client personally even in the general run of cases. It must be commonplace for instructions to be given through an agent, such as an accountant or managing agent or a spouse. But whatever the general position, the parties must have contemplated in the particular circumstances of this case that the claimant might suffer from a further period of incapacity in which she would be unable to give instructions personally but they could be given by a litigation friend or a receiver/deputy or on her behalf. I accept Mr Spearman’s submissions on that point (see paragraph 31 above). The fact that supervening incapacity prevented the claimant from giving instructions personally did not render the contract of retainer impossible of performance; it simply gave rise to a short period of delay pending appointment of a receiver/deputy who could continue the conduct of the proceedings on the claimant’s behalf and give instructions to the solicitors for that purpose.
  2. I also accept Mr Spearman’s submission (paragraph 32 above) that if the claimant was under an obligation to give instructions personally and was unable to comply with that obligation by reason of her supervening incapacity, the situation was covered by the express terms of the CFA, which entitled the solicitors in that event to end the contract and to require payment of their basic charges and disbursements. The unattractiveness of such a result is a further indication that it cannot have been the intention of the parties that the claimant had to give instructions personally; but if that was their intention, and the situation arose in which the claimant was unable to give such instructions, the contract catered expressly for the consequences and it cannot possibly be said that this was a fundamentally different situation from anything contemplated by the contract.
  3. Those points, which reflect the specific way in which the case for the claimant was argued before us on the appeal, are sufficient to show that the defendant’s case that the CFA was frustrated must fail. More generally, however, I agree with the reasons given by the judge (paragraph 24 above) for concluding that the CFA was not frustrated. I find no force in any of Mr Hutton’s detailed criticisms of those reasons.
  4. I was tempted to cut this judgment right back to a simple expression of agreement with the judge. I have taken the long route in order to deal fully with the arguments of counsel and to make clear that, notwithstanding the interesting questions thrown up by some of those arguments, the actual issue in the appeal is a narrow one and can be disposed of accordingly.

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