IF YOU ENTER INTO A CONTENTIOUS BUSINESS AGREEMENT WITH YOUR CLIENT ARE YOU PLAYING RUSSIAN ROULETTE?

The judgment of Master Campbell in Addleshaw Goddard LLP  -v- Wood & Hellard [2015] EWHC B12 (Costs) has some interesting observations on contentious business agreements and the nature of litigation financing generally.

THE CASE

The claimant solicitors had entered into a Contentious Business Agreement with Mr Berezovsky in October 2010. Mr Berzovsky died in March 2013.  The defendant were the Administrators of the insolvent estate.  The claimant issued proceedings that it was entitled to payment of fees of £12,663,822.95 and that it was entitled to charge, under Section 73 of the Solicitors Act 1974, on any money recovered by the Administrators through the Claimant’s instrumentality.

KEY POINTS

  • A contentious business agreement entered into between a firm of solicitors and an experienced businessman was both valid and, in the circumstances of the case, reasonable.
  • The businessman had approved the charges within his own lifetime. There was no reasonable basis for the defendants having these charges assessed.

THE AGREEMENT

There were a number of agreements which are set out in detail below (at the end of this post). However the key terms are succinctly summarised at paragraph 5 of the judgment.
  1. For present purposes, it is enough to say that:-
i) On 15 May 2009, Mr Berezovsky signed an engagement letter relating to the Main Action, to which was annexed AG’s Terms of Business (“the Original Letter”) [MRH1 1-14].
ii) On 26 October 2010, Mr Berezovsky signed a further engagement letter which “amends our letter dated 15 May 2009 … which continues in force except as varied by the agreement contained in this letter from the above date” (“the October Letter”) [MRH 1 15-50].
iii) The terms of the October Letter provided that Mr Berezovsky would pay for AG’s services under the retainer in the following way:-
a) If the Main Action did not succeed (by way of final judgment or favourable settlement) he would pay AG for work done at a reduced hourly rate of approximately 50% of the firm’s standard charges known as the “Reduced Fee”.
b) If Mr Berezovsky obtained any “Benefit” (as defined) namely a favourable judgment or order or settlement from pursuing the Main Action, defined as “Level 1 Success”, then he would pay AG’s fees for work done at the firm’s standard charging rate.
c) If Mr Berezovsky recovered “any Benefit” as a result of which he made a recovery (whether in the form of assets or money) with an aggregate value of at least the Trigger A Amount (with asset value(s) to be taken at the date of recovery) or made an aggregate recovery of at least the Trigger B Amount (or assets to that value) across the Chancery Actions, a 100% success fee would be added to AG’s standard hourly charges being defined as “Level 2 Success”.
(iv) On 23 October 2012, Mr Berezovsky signed an irrevocable payment instruction in AG’s favour to pay the firm out of any monies currently or in future paid to AG what was due for fees and disbursements [MRH 3 4-5] [“the Irrevocable Agreement”].

WAS THIS A VALID AND REASONABLE AGREEMENT?

The Master addressed this issue at Part 9 of the judgment.
PART 9 – DECISION ON THE CBA
  1. In paragraph 5, I mentioned that I would need to address whether the retainer between AG and Mr Berezovsky was a CBA or a CFA and whether it mattered. The Administrators’ position is that this was a CFA and that, accordingly, the provisions of s.59 – s. 61 of the Act have no application. Mr Wood (Wood 1 – paragraph 15), observes that the application is to “enforce the discounted CFA” and throughout his skeleton argument, Mr Atherton refers to “the CFA” and not to ” the CBA”. For AG, any reference by Mr Bacon to the retainer in his skeleton argument is to “the CBA”. If Mr Atherton be right, it is correct that ss.59-61 will not be engaged since they apply only to CBAs and not to CFAs, so AG’s application for enforcement will fail at the first hurdle.
  2. In my judgment, the terms of the retainer between AG and Mr Berezovsky are evidenced in a CBA which is, in principle, eligible to be enforced under s.61 of the Act. Although it is right that the October Letter is headed “Discounted Conditional Fee Agreement”, the body of the letter explains to Mr Berezovsky in clear terms that although the Original Letter, the October Letter and the Schedule thereto constitute a CFA, “…this is a Contentious Business Agreement”. The letter continues at paragraph 12 to explain that because the agreement is a CBA, Mr Berezovsky’s rights under the Act are limited by ss.59-61. In doing so it would have been plain to Mr Berezovsky as advised by his Legal Team, that this was a different type of retainer to one in which he would have an absolute right to have the charges assessed by the court under s.70 of the Act if he wished to do so.
  3. I consider that here would be no purpose in telling Mr Berezovsky that that was so, unless the document was just that, a CBA. The fact that, as a term of the agreement, there is a mechanism under which AG’s fees are to be discounted unless “Benefit” and “Success” as defined are achieved, does not make the agreement a CFA, or expressed differently, not a CBA. Whilst I accept that it is not necessarily the case that just because a document says it is a CBA, that it must be a CBA and that regard must be had to “the substance” and not merely ” the form” (see Specter paragraph 14), here I am in no doubt that the terms I have mentioned provide sufficient evidence of the former. It follows that I am satisfied that the retainer which Mr Berezovsky signed was a CBA and that in principle, the court has jurisdiction to enforce it under s.61 of the Act.
  4. Whilst it is not part of their case that the entire retainer was defective and therefore unenforceable, the Administrators have advanced alternative challenges to its validity by reference to the manner in which the CBA was executed. They cast doubt on AG’s explanation that the agreement was properly explained to Mr Berezovsky and that he took independent legal advice as to its terms in accordance with AG’s recommendation to do so.
  5. I prefer Mr Bacon’s submissions on this point. As he explained, Mr Berezovsky was an experienced man of business and whilst the terms of the retainer may have been unusual and the fees significant, Mr Berezovsky had a team working for him including lawyers, whose brief included the task of providing advice about legal documents. In my judgment, the evidence of Mr Lindley is both significant and persuasive when he said this on day 14 of the Abramovich trial:-
“In 2008, November 2008, Mr Berezovsky asked me at – I think it was at his mother’s birthday party – whether I would assist him in finding a firm of lawyers that would be prepared to take over the conduct of the Roman Abramovich litigation from Cadwaladers. So I spent some time looking into this and the result was the appointment of Addleshaw Goddard. I think that they were appointed in – I think it was December, early December 2008.
So with regard to their appointment, I negotiated their terms of business. Moving forward, we had discussions in terms of the personnel that were going to work on these cases. I also had some input in terms of the appointment of the senior barrister team, which resulted in the appointment of Laurence Rabinowitz and Richard Gillis. I have been involved – I would say this is one of my main roles in relation to this litigation, is to review billings, to stay on top of billings. I was responsible for negotiating a CFA which Mr Berezovsky entered into with Addleshaw Goddard. [emphasis added]
I perceive my main role in the litigation is to really focus on financial matters, focus on and use my knowledge of the business, the legal business, to deliver the legal services that have been provided at a cost which is competitive and gets the best deal for Mr Berezovsky.”
  1. That evidence could scarcely be clearer about the circumstances in which Mr Berezovsky came to enter into the retainer (as an aside, whilst Mr Lindley may have referred to the document as a CFA, I do not think this is of any significance for the reasons given –see paragraphs 69-70 above). It follows that even if I were to have any concern about Mr Berezovsky’s signature merely having been put to a pro forma wording, that would be laid to rest by the involvement of the Client Team and the evidence given by Mr Lindley which I have recited above. That evidence has all the more force when it is remembered that it was provided in circumstances where the issue was not whether the documents had been properly explained to Mr Berezovsky, but rather, what role Mr Lindley had played and what responsibility lay with him as his legal adviser. In answering that question, Mr Lindley made it plain that he, as a solicitor, had been responsible for completing the terms of AG’s retainer. Put another way, this was not a case where an inexperienced individual had signed a document which he had negotiated himself without the benefit of legal advice. Here it was the reverse: this was an experienced businessman who took advice before signing it. The submission casting doubt about the validity of the CBA arising from the circumstances of its execution, accordingly fails and for that reason, it is unnecessary to address Mr Bacon’s case on estoppel by representation.
  2. I reach the same conclusion about certainty of the terms of the agreement. Whilst Mr Atherton is right to rely on the decision in Chamberlain as a statement of principle, I am satisfied that the facts which concerned Lord Denning in Chamberlain and indeed Mann J in Specter are not present here. First, the agreement was made in writing, signed by the client and set out the hourly rates etc. In Chamberlain, there is no mention that Mr Chamberlain III had ever signed the letters relied on by his former solicitors as evidence of the CBA, nor that they had given him “… the least idea what he [was] letting himself in for by way of costs” [191 at c.], whilst in Specter there was no signed agreement relating to the specific piece of litigation being undertaken (see judgment paragraph 16a). Second, it is plain from Mr Lindley’s evidence to Gloster J that he had been involved in discussions in terms of the personnel who were to be deployed on the case. In difficult and complex litigation such as the Main Action, the ability of AG to call upon specialist expertise when required, is not a term that is either uncertain or unreasonable in my view. Third, as Mr Bacon has emphasised, a clause which permits a solicitor to increase his hourly charging rate (for example in line with inflation) is ubiquitous in solicitors’ engagement letters. Here the clause in question added the caveat that any changes would be discussed with Mr Berezovsky before implementation. Again, I see nothing uncertain or unreasonable about such a clause. The Administrators’ case on uncertainty accordingly fails.
  3. Next, the success fee. The short point here is that win or lose, AG were entitled to be paid and indeed have received, 50% of the fees they would ordinarily would have charged for the case. For that reason it is said that the entitlement to the balance of the “usual” fee for winning something, however small, was unreasonable, and an additional 100% of that fee for recovering either Trigger A Amount in the Main Action or Trigger B Amount in the Chancery Actions, was wholly unjustified. I disagree. To start with, as Mann J observed in the Main Action, “This was a very complex piece of litigation. The trial would have thrown up a myriad of points, both factual and legal. … There were freezing order applications, time summonses, search and seizure applications, disclosure disputes, privacy and redaction disputes, disputes about privilege and many other points, including disputes about what the dispute should be about …”. Given these difficulties, many of which as it seems to me, were present here, the risks of AG going part-paid were high. Not only that, the sheer size of the litigation across all the actions would have tied up many of AG’s fee earners for significant periods with the possibility that at the end of it all (as proved to be the case in the Abramovich action), the firm would have had to be satisfied with the Reduced Fee and nothing else.Next, it must be remembered that this was a business agreement between people whose work was business and the supply of business services, in which Mr Berezovsky did not have the financial luxury and ability of being able to meet his legal bills as and when they fell due. The commercial solution to that problem was to enter into a retainer which had elements of “give and take” on both sides. For Mr Berezovsky, the CBA gave him the ability to finance the litigation without all the fees having to be paid “up front”. For AG, the firm took the risk that if the litigation failed, millions of pounds worth of work would have to be written off, but the quid pro quo for that was that if the actions succeeded, the firm would receive a bonus.
  4. Both sides relied on Gloucestershire CC. I agree with Mr Atherton that “costs at risk” and the fact that win or lose, AG would recover the Reduced Fee, are relevant factors to take into account when considering the reasonableness of the success fee, but that is tempered by the fact that that was a case about costs between the parties. The position here is once removed, in the sense that, contrast Gloucestershire CC where it was the paying party saying that the success fee was too high, here we are addressing charges as between solicitor-and-own client under a contractual agreement which has provided for its level. It follows that in accepting Mr Bacon’s submission, I am not doing so simply because agreements embodying such terms, in particular that the success fee can be 100%, have been permitted since 1999 under Section 58 Access to Justice Act 1998. On the contrary, in the circumstances as they have been explained to me, I do not consider that the success fee is either unreasonable or unfair, having been commercially negotiated by both sides in the way I have described, so the point fails.
  5. Finally in this series of challenges, Mr Atherton submits that even if the court is persuaded to enforce the terms of the CFA, there should first be an enquiry into the number of hours worked in order to be certain that the hours charged are not excessive. In this respect, he draws a distinction between a CBA which provides for remuneration by way of a fixed sum and the case here, where the charges are worked out by reference to an hourly rate.
  6. Mr Atherton is correct that AG have already been paid the Reduced Fee and part of the Level 1 Success Fee, in total £9,774,050.18 (including VAT) and that the further £12,663,822.95 claimed is a large sum. In other circumstances, his submission might prove irresistible, given the size of the fee and the number of hours worked (35,573.94 according to Mr Hastings [MRH1 7] paragraph 6.2). However, the position here has the following crucial distinctions. To start with, the invoice for the Reduced Fee was submitted to Mr Berezovsky in his lifetime. It was then scrutinised by his Client Team, as a result of which reductions were made and the bill was then paid. The evidence for the fact that the fees were negotiated is to be found (by way of illustration) in MRH3 at page 136 which refers to “a meeting last week” at which the AG’s accounts and disbursements covering May, June and July 2011 were discussed. There is then in MRH3 at page 2, an email from Mr Cotlick to AG dated 22 October 2012 as follows:-
“Thank you very much for your email. It summarises correctly the matters discussed at our meeting on Thursday.
I am also grateful for the confirmation that you agree with the proposal in relation to the payment of the Level 1 Success Fee … Best regards. Michael”
  1. I shall not set out the contents of the e mail to which Mr Cotlick was replying but it is clear that it was written following a meeting at partner level, being one of many such events, which he attended at AG’s offices on 19 October 2012 for the specific purpose of discussing the firm’s fees both incurred and going forward. Indeed, it appears that the suggestion that there should be an irrevocable authority was made by Mr Cotlick at that meeting and that the Irrevocable Agreement had been signed shortly thereafter. Mr Lindley also told Gloster J that one of his main roles had been to review billings (see paragraph 72 above).
  2. In my judgment, those steps having been taken, the bill and by implication the hours worked, were thereby approved and, by the same token, so were the success fees. I say this because the Level 1 and Level 2 Success Fees are simply the contractual balance of charges which had already been approved by the client and paid. Not only that but Mr Cotlick’s e mail dated 22 October 2012 gave express approval to the payment of invoice 307327 for the Level 1 Success Fee. To that can be added the irrevocable undertaking which Mr Berezovsky signed on 23 October 2012 which authorised AG to pay the invoices out of any money then held in, or in future to be paid into the firm’s client account. The client having approved the charges, I do not think it can be validly advanced on behalf of the Administrators that this was not a case of “work done” to earn the success fee. For that reason the point fails.
  3. That also deals with a further submission made by Mr Atherton by his reference to examples of charges that would be vulnerable to reduction upon any scrutiny being carried out by the court. Those he gave include the fact that the scope of the work under the retainer is said not to cover the conduct of any application for permission to appeal or any final or any interlocutory appeal. Nonetheless, charges were made (by way of illustration) for “drafting emails to House of Lords, drafting letter to Court of Appeal” and “discussions with Mr Kelleher in relation to appeal” which plainly fell outside the definition of the work for which AG was retained. That maybe so but the point fails for the reason I have given, namely that the bill including the charges for that type of work was scrutinised by the Client Team, negotiated down and reflected in the issue of the credit notes. It follows that that scrutiny having been carried out, no purpose would be served by involving the court in a repeat of that exercise in circumstances where Mr Berezovsky, in his lifetime, approved the charges and gave instructions to pay them via the Irrevocable Agreement when sufficient of the settlement funds were received to do so.
  4. For all these reasons, I am satisfied that the retainer was a CBA, that its terms were not unreasonable or unfair to Mr Berezovsky and that no purpose would be served were the court to carry out an enquiry by detailed assessment into the hours worked on the case. It follows that, subject to what I have to say below about the s.73 charge, AG is entitled to an order for enforcement of the CBA for the sums claimed.

THE CHARGE UNDER THE SOLICITORS ACT

The Master subsequently granted the claimant a charge over the fund held to the order of the Administrator pending payment of the firm’s outstanding bills.

THE AGREEMENTS IN DETAIL

  1. The following are the material parts of the retainer letters to which I need to refer. The letter of 15 May 2009 provides as follows [MRH1 2-5]:-
“Dear Mr Berezovsky
Project Aintree (formerly known as Project A – Claim No: HC08C03549
We are very pleased that you have decided to instruct us in relation to Project Aintree …
You have authorised us to accept and act on instructions given jointly or individually by Michael Lindley, Michael Cotlick and Yuli Dubov on your behalf and we will rely upon their instructions unless and until you notify us in writing to the contrary.
This letter sets out the scope of our work, tells you who will be advising you and provides our current fees. A further copy of our terms of business accompanies this letter and will apply to the provision of services to you except to the extent that they may be varied in this engagement letter or in future engagement letters …
Partner Responsibility, Personnel and Fees
In accordance with our client care and quality of service programme, I will be the partner responsible to you for this work (Matter Partner).
I set out below our direct dial telephone numbers and the names and/or status and numbers of those who I propose to assist us with the work and with whom you can expect to deal. I also set out the hourly charging rates before and after 1 May 2009 (reflecting our agreed discount) on each person … Our rates are reviewed annually on 1 September. Notwithstanding this, there will be no review of the rates until 1 May 2010.
As our work progresses, it may become necessary to use the expertise of additional lawyers or staff. Should other associates be required to assist in this matter, their hourly rates will vary between £260 and £405, depending on their level of experience. I will discuss their involvement with you as the need arises.
It is our standard practise to invoice our clients monthly. All invoices will be discharged by you within fourteen days of receipt … I would be obliged if you would confirm your agreement to these terms by signing and returning the enclosed copy of this letter. If you have any questions or comments about the contents of this letter or wish to discuss further the terms of our appointment, please do not hesitate to contact me. I hope that the basis of our relationship is clear and we look forward to working with you on this case.
  1. On 26 October 2010, the Original Letter was amended by the October Letter [MRH1 16-22]. The material terms provide as follows:-
“Dear Mr Berezovsky
Main Action: HC09C03549
Discount Conditional Fee Agreement
This letter amends our letter dated 15 May 2009 (“Original Letter) which continues in force except as varied by the agreement contained in this letter from the above date. This letter and the Original Letter together set out the terms upon which we will act for you in respect of the Claim as defined in the Schedule. The terms of this letter will take effect from 1 August 2010.
1. Interpretation
The Schedule to this letter contains definitions. Where this letter uses words which are defined in the Schedule, those words have the meanings assigned to them in the schedule. This letter, the Original Letter and the Schedule together constitute the CBA. The CBA is a contentious business agreement within the meaning of the Solicitors Act 1974.
4. Invoicing arrangements
Under this Agreement our fees would be calculated by reference to the hourly rates set out above [these are not in dispute so I have omitted paragraph 3 of the letter]. We will bill you on account for the Reduced Fee, together with any Expenses and VAT usually on a monthly basis. You will have to pay us the Reduced Fee, the Expenses and VAT whether you are Successful or Unsuccessful.
Our invoices in respect of the Reduced Fee and Expenses will be interim invoices on account and you must pay them within 30 days.
We will invoice you any further sums due under this agreement as and when they become due.
5. What payment is due to us if you are Successful
If you achieve Level 1 Success, you will pay us the following amounts:

(a) Any amount of the Reduced Fee which has not yet been paid;

(b) The difference between the Reduced Fee and the Basic Fee;

(b) Any Expenses which have not yet been paid;

(d) VAT on the above at the applicable rates.

If you achieve Level 2 Success, you pay us:

(a) to (d) above and, in addition:

(e) The Success Fee;

(f) VAT thereon at the applicable rates …

12. Right to Apply for an Assessment
Generally the clients of solicitors have a right to have the solicitors’ charges assessed by the court, subject to certain conditions. As this agreement is a contentious business Agreement, your rights to have our charges assessed by the court are limited by Sections 59 to 61 of the Solicitors Act 1974. We will advise you fully of your rights on request. You are welcome to seek advice from another law firm, but would have to pay for that advice …
If you wish to enter into a conditional fee agreement with us on these terms, please sign and return the enclosed copy of this letter.
Yours sincerely
Richard Leedham
Partner, Head of Litigation for Addleshaw Goddard LLP
I confirm that the matters set out in this letter were fully explained to me orally by an independent solicitor
Signed: [Boris Berezovsky]
26 October 2010″
  1. The schedule sets out the relevant definitions as follows:-
Basic Fee
Means the firm’s fees calculated at the firm’s standard hourly rates set out in the column headed “Hourly rate – Basic Fee” in the table in clause 3.
Benefit
Means obtaining a judgment or order or award at first instance or a settlement under which the Other Parties are liable to pay money or to give any other advantage or benefit to you including but not limited to a judgment or order for specific performance and any other order, undertaking or agreement that the Other Parties will do or refrain from doing any act or execute any document, whether or not of measurable financial value. Obtaining Costs Only relief (see clause 7) or any purely procedural advantage (such as disclosure of documents) is not a Benefit for these purposes.
For the avoidance of doubt obtaining by judgment or order or award at first instance or a settlement relief substantially in the form of any of the prayers set out in the relief section of paragraphs 1 to 21 of the Amended Particulars of Claim dated 1 April 2010 in HC08C03549 (pages 93 to 97) against the defendants or any of them shall constitute a Benefit for these purposes.
Recoverable Basic Fee
Means such part of our Basic Fee as the Other Parties (or any of them) agree or are ordered to pay.
Reduced Fee
Means the firm’s fees calculated at the reduced hourly rate set out in the column headed “Hourly rate – Reduced Fee” in the table in clause 3, and payable whether or not the Claim is Successful.
Level 1 Success
Means your obtaining, in relation to any work carried out under this Agreement, (whether or not at the time in question we continue to represent you or are instrumental in procuring the outcome in question) any Benefit.
Level 2 Success
Means your obtaining (whether or not at the time in question we continue to represent you or are instrumental in procuring the outcome in question):

(a) any Benefit, where the consequence is that you make a recovery (whether in the form of assets or money) with an aggregate value of at least [the Trigger A Amount] (with asset value(s) to be taken at date of recovery); and/or

(b) a recovery (whether in the form of assets or money) with an aggregate value after any counterclaims of at least [the Trigger B Amount] (with asset value(s) to be taken at date of recovery) from any or all of the Other Parties and defendants to the Other Chancery Proceedings.

Success
Shall include success in relation to part of the Claim, notwithstanding that other parts of the Claim remain in issue, and where Success is achieved, the Basic Fee and (where it is Level 2 Success) the Success Fee will be payable in respect of all work conducted by us, and not merely in respect of work conducted in relation to that part of the Claim which was successful.
Where there is a counterclaim against you and our conduct of the defence of that counterclaim is covered by this Agreement, Success shall be assessed by reference to whether a net sum is due to you after the setting off of any sum payable by you in respect of the counterclaim, including Interest.
In determining whether any Benefit has been obtained or the level thereof no account shall be taken of costs payable by or to you.
In the event of Success being affected by any appeal, Success shall be determined by the ultimate result when all appeals have been disposed of.
Success Fee
Means a fee representing 100% of the Basic Fee. The Success Fee comprises both:

(a) the fact that if you are Successful we will not be paid the difference between the Reduced Fee and the Basic and Success Fees until the end of the case (the Financing Factor); and

(b) the following additional factors which we refer to as Risk Factors:

(i) the fact that we are taking the risk of being paid the Reduced Fee instead of the Basic Fee if you are Unsuccessful;

(ii) our assessment of the risks of your case, including:

  • The fact that you are the claimant in highly complex proceedings in which the Other Parties have demonstrated a willingness to fight to trial;
  • The fact that prior to entering into this Agreement the parties to the Proceedings have not given disclosure;
  • That obtaining evidence abroad, which is necessary in connection with the Claims, can be more difficult than obtaining evidence in this jurisdiction;
  • The fact that prior to entering this Agreement the parties to the Proceedings have not exchanged witness statements;
  • The fact that much depends on oral testimony at trial and the ability of witnesses to withstand cross-examination, which can be unpredictable.
The Financing Factor constitutes 1% of the Success Fee, while the Risk Factors constitute the balance of 99%.
Unsuccessful
Means that a final judgment, award or determination is made against you in respect of each issue comprised in the Claim, or you otherwise fail to achieve Level 1 Success.”
  1. The Irrevocable Agreement signed on 23 October 2012 where material said this :-
“STRICTLY PRIVATE & CONFIDENTIAL
Addleshaw Goddard LLP
Milton Gate
60 Chiswell Street
London
EC1Y 4AG
Dear Sirs
Payment Instruction
1. I refer to the settlement deed in respect of certain proceedings between myself, Inna Gudavadze (Inna) and others dated 9 September 2012 as subsequently amended (the Settlement Deed).
2. In respect of any monies currently held in, or in future paid into, your client account(s) on my behalf pursuant to the terms of the Settlement Deed together with any interest accruing on the same (the “Monies“) I hereby irrevocably (i) agree that you may and (ii) authorise and instruct you to:

(a) retain the Monies and not pay any amount of the Monies to me until the amounts referred to in paragraphs 2(b) and (c) have been paid in full;

(b) without the need to obtain further consent or instruction from me, pay out of the Monies the amounts agreed by me to be paid pursuant to the terms of any Costs Agreement, such amounts to be paid in advance of the relevant payment deadline and for these purposes a “Costs Agreement” means any agreement entered into by me (or by you on my behalf) and a third party in respect of the payment by me of that third party’s costs and of which you have received a copy; and

(c) without the need to obtain further consent or instruction from me, pay out of the Monies all fees, disbursements and expenses that are payable to you or that become payable to you pursuant to the terms of the retainers between you and me as and when the same are due so long as the terms of the Settlement Deed and the Costs Agreements do not prohibit their payment at that time but if they do prohibit payment at that time they shall be paid as soon as that prohibition ceases to apply.

3. If the amount of the Monies standing to the credit of your client account(s) at the relevant time is such that it will not be possible to make a payment referred to in paragraph 2(b) or (c) in full that is required to be made at that time, part payment shall be made instead with the balance to be paid from additional Monies as and when received by you into your client account(s).
….
Yours faithfully
Executed and delivered as a deed by
Boris Berezovsky”

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