AMENDED APIL PIBA 6
AMENDED APIL / PIBA 6 STANDARD TERMS AND CONDITIONS POSTED ON THE APIL AND PIBA WEBSITES AND TREATED AS ANNEXED TO THE CONDITIONAL FEE AGREEMENT BETWEEN SOLICITOR AND COUNSEL FOR USE AFTER 1 NOVEMBER 2005
PART ONE CONDITIONS PRECEDENT
Papers provided to Counsel
1. The solicitor should have provided counsel with the following documents:
1) a copy of the conditional fee agreement between the solicitor and the
client and the Law Society's Conditions as they apply to the claim;
2) written confirmation that "after the event" or other similar insurance is in
place, or a written explanation why it is not;
3) all relevant papers and risk assessment material, including all advice from
experts and other solicitors or barristers to the client or any Litigation
Friend in respect of the claim, which is currently available to the solicitor;
and
4) any offers of settlement already made by the client or the defendant.
Solicitor’s Compliance with Statute
2. The solicitor confirms that the conditional fee agreement between the solicitor
and the client complies with sections 58 and 58A of the Courts and legal Services
Act 1990.
PART TWOOBLIGATIONS OF COUNSEL To act diligently
3. Counsel agrees to act diligently on all proper instructions from the solicitor
subject to paragraph 4 hereof.
Inappropriate Instructions
4. Counsel is not bound to accept instructions:
1) to appear at any hearing where it would be reasonable
(a) to assume that counsel's fees would not be allowed on assessment
or
(b) to instruct a barrister of less experience and seniority,(albeit that
counsel shall use his/her best endeavours to ensure that an
appropriate barrister will act for the client on the same terms as this
agreement);
2) to draft documents or advise if a barrister of similar seniority
would not ordinarily be instructed so to do if not instructed on a
conditional fee basis;
3) outside the scope of this agreement.
PART THREEOBLIGATIONS OF THE SOLICITOR
5. The solicitor agrees:
1) to comply with all the requirements of the CPR, the practice direction
about costs supplementing parts 43 to 48 of the CPR (PD Costs), the
relevant pre-action protocol, and any court order relating to conditional
fee agreements, and in particular promptly to notify the Court and the
opponent of the existence and any subsequent variation of the CFA with
the client and of this agreement and whether he / she has taken out an
insurance policy or made an arrangement with a membership organisation
and of the fact that additional liabilities are being claimed from the
opponent;
2) promptly to apply for relief from sanction pursuant to CPR part 3.8 if any
default under part 44.3B(1)(c) or (d) occurs and to notify counsel of any
such default;
3) to act diligently in all dealings with counsel and the prosecution of the
claim;
4) to liaise with or consult counsel about the likely amount of counsel’s fees
before filing any estimate of costs in the proceedings, and to provide a
copy of any such estimate to counsel;
5) to consult counsel on the need for advice and action following:
(a) the service of statements of case and if possible before the allocation
decision; and (b) the exchange of factual and expert evidence;
6) to deliver within a reasonable time papers reasonably requested by counsel
for consideration;
7) promptly to bring to counsel's attention:
(a) any priority or equivalent report to insurers;
(b) any Part 36 or other offer to settle;
(c) any Part 36 payment into Court;
(d) any evidence information or communication which may
materially affect the merits of any issue in the case;
(e) any application by any party to have the client’s costs capped;
(f) any costs capping order;
(e) any other factor coming to the solicitor's attention which may affect
counsel's entitlement to success fees whether before or after the
termination of this agreement;
8) promptly to communicate to the client any advice by counsel:
(a) to make, accept or reject any Part 36 or other offer;
(b) to accept or reject any Part 36 payment in;
(c) to incur, or not incur, expenditure in obtaining evidence or
preparing the case;
(d) to instruct Leading counsel or a more senior or specialised
barrister;
(e) that the case is likely to be lost;
(f) that damages and costs recoverable on success make it
unreasonable or uneconomic for the action to proceed;
9) promptly to inform counsel's clerk of any listing for trial;
10) to deliver the brief to counsel in accordance with the agreement between
the solicitor and counsel;
11) to inform Counsel promptly if the case concludes 14 days before the date
fixed for trial if the claim is allocated to the fast-track or 21 days if
allocated to the multi-track;
12) if any summary assessment of costs takes place in the absence of counsel,
to submit to the court a copy of counsel's risk assessment and make
representations on counsel's behalf in relation to his/her fees;
13) to inform counsel in writing within 2 days of any reduction of counsel's
fees on summary assessment in the absence of counsel and of any
directions given under PDCosts 20.3(1) or alternatively to make
application for such directions on counsel's behalf;
14) where points of dispute are served pursuant to CPR part 47.9 seeking a
reduction in any percentage increase charged by counsel on his fees, to
give the client the written explanation required by PDCosts 20.5 on
counsel's behalf;
15) where more than one defendant is sued, the solicitor will write to the "after
the event" insurers clarifying whether and when defendants’ costs are to
be covered if the claimant does not succeed or win against all of the
defendants, and send that correspondence to counsel; and
16) when drawing up a costs bill at any stage of the case to include in it a
claim for interest on counsel's fees.
PART FOURTERMINATION Termination by Counsel
6. Counsel may terminate the agreement if:
1) Counsel discovers the existence of any document which should have been
disclosed to him under clause 1 above and which materially affects
Counsel’s view of the likelihood of success and/or the amount of financial
recovery in the event of success;
2) Counsel discovers that the solicitor is in breach of any obligation in
paragraph 5 hereof;
3) the solicitor, client or any Litigation Friend rejects counsel's advice in any
respect set out in paragraph 5(8) hereof;
4) Counsel is informed or discovers the existence of any set-off or counterclaim
which materially affects the likelihood of success and/or the amount
of financial recovery in the event of success;
5) Counsel is informed or discovers the existence of information which has
been falsified or should have been but has not been provided by the
solicitor, client or any Litigation Friend, of which counsel was not aware
and which counsel could not reasonably have anticipated, which
materially affects the merits of any substantial issue in the case;
6) Counsel is required to cease to act by the Code of Conduct of the Bar of
England and Wales or counsel's professional conduct is being impugned;
provided that counsel may not terminate the agreement if so to do would
be a breach of that Code, and notice of any termination must be
communicated promptly in writing to the solicitor;
7) A costs capping order is made which counsel reasonably believes may
adversely affect the recoverability of his or her normal fees and/or his or
her percentage increase.
8) If the opponent receives Community Legal Service funding.
Termination by the Solicitor
7. The solicitor may terminate the agreement at any time on the instructions of the
client or any Litigation Friend.
Automatic Termination
8. This agreement shall automatically terminate if:
1) Counsel accepts a full-time judicial appointment;
2) Counsel retires from practice;
3) the solicitor's agreement with the client is terminated before the
conclusion of the case;
4) Legal Services Commission funding is granted to the client;
5) the client dies;
6) the court makes a Group Litigation Order covering this claim.
Client becoming under a Disability
9. If the client at any time becomes under a disability then the solicitor will:
1) consent to a novation of his Conditional Fee Agreement with the client to
the Litigation Friend and
2) where appropriate, apply to the Court to obtain its consent to acting under
a conditional fee agreement with the Litigation Friend.
Thereafter, the Litigation Friend shall, for the purposes of this agreement,
be treated as if he/she was and has always been the client.
Counsel taking Silk
10. If counsel becomes Queen's Counsel during the course of the agreement then
either party may terminate it provided he/she does so promptly in writing.
PART FIVECOUNSEL’S FEES AND EXPENSES Counsel's Normal Fees
11. 1) Counsel's fees upon which a success fee will be calculated (the normal fees)
will be calculated on the basis of fees agreed from time to time between the solicitor and counsel’s clerk.
Counsel's Success Fee
12. The rate of counsel's success fee and reasons will be as set out in the agreement
between the Solicitor and Counsel.
Counsel's Expenses
13. If a hearing, conference or view takes place more than 25 miles from counsel's
chambers the solicitor shall pay counsel's reasonable travel and accommodation
expenses which shall:
1) appear separately on counsel's fee note;
2) attract no success fee and
3) subject to paragraph 16 be payable on the conclusion of the claim or
earlier termination of this agreement.
PART SIXCOUNSEL'S ENTITLEMENT TO FEES (A) If the Agreement is not TerminatedDefinition of “success”
14. 1) “Success” is achieving, by final judgment or agreement, the entitlement to damages for the claimant.
2) Subject to paragraphs 15, 18 & 21 hereof, in the event of success the
solicitor will pay counsel his/her normal and success fees.
3) If the client is successful at an interim hearing counsel may apply for
summary assessment of solicitor’s basics costs and counsel’s normal
fees.
Part 36 Offers and Payments
15. If the amount of damages and interest awarded by a court is less than a Part 36
offer then:
1) if counsel advised its rejection he/she is entitled to normal and success
fees for work up to receipt of the notice of Part 36 offer but only normal fees for subsequent work;
2) if counsel advised its acceptance he/she is entitled to normal and success
fees for all work done.
Failure
16. Subject to paragraph 17 (1) hereof, if the case is lost or on counsel's advice ends
without success then counsel is not entitled to any fees or expenses.
Errors and Indemnity for Fees
17. 1) If, because of a breach by the solicitor of his/her duty to the client, the client's
claim is dismissed or struck out:
a) for non compliance with an interlocutory order; or
b) for want of prosecution, or
c) by rule of court or the Civil Procedure Rules; or
becomes unenforceable against the MIB for breach of the terms of
the Uninsured Drivers Agreement:
the solicitor shall (subject to sub paragraphs (3) - (6) hereof) pay counsel such
normal fees as would have been recoverable under this agreement.
(2) If, solely because of a breach by counsel of his/her duty to the client, the client's
claim is dismissed or struck out:
a) for non compliance with an interlocutory order; or
b) for want of prosecution, or
c) by rule of court or the Civil Procedure Rules
counsel shall (subject to sub paragraphs (3) -(6) hereof) pay the solicitor such
basic costs as would have been recoverable from the client under the solicitor's
agreement with the client.
(3) If, because of non-compliance by the solicitor of the obligations under
sub- paragraphs (1), (2), (11), (12) or (13) of paragraph 5 above,
counsel's success fee is not payable by the Opponent or the client then the
solicitor shall (subject to sub-paragraphs (5) to (7) hereof) pay counsel
such success fees as would have been recoverable under this agreement.
(4) No payment shall be made under sub paragraph (1), (2) or (3) hereof in
respect of any non-negligent breach by the solicitor or counsel.
Adjudication on disagreement
(5) In the event of any disagreement as to whether there has been an
actionable breach by either the solicitor or counsel, or as to the amount
payable under sub paragraph (1), (2) or (3) hereof, that disagreement shall
be referred to adjudication by a panel consisting of a Barrister nominated
by PIBA and a solicitor nominated by APIL who shall be requested to
resolve the issue on written representations and on the basis of a procedure
laid down by agreement between PIBA and APIL. The costs of such
adjudication shall, unless otherwise ordered by the panel, be met by the
unsuccessful party.
(6) In the event of a panel being appointed pursuant to sub paragraph (5)
hereof:
a) if that panel considers, after initial consideration of the
disagreement, that there is a real risk that they may not be able to
reach a unanimous decision, then the panel shall request APIL
(where it is alleged there has been an actionable breach by the
solicitor) or PIBA (where it is alleged that the has been an
actionable breach by counsel) to nominate a third member of the
panel;
b) that panel shall be entitled if it considers it reasonably necessary, to
appoint a qualified costs draftsman, to be nominated by the
President for the time being of the Law Society, to assist the panel;
c) the solicitor or counsel alleged to be in breach of duty shall be
entitled to argue that, on the basis of information reasonably
available to both solicitor and barrister, the claim would not have
succeeded in any event. The panel shall resolve such issue on the
balance of probabilities, and if satisfied that the claim would have
been lost in any event shall not make any order for payment of fees
or costs.
Cap
(7) the amount payable in respect of any claim under sub paragraph (1) or (2) or
(3) shall be limited to a maximum of £25,000.
(B) On Termination of the Agreement Termination by Counsel
18. (1) If counsel terminates the agreement under paragraph 6 then, subject to subparagraph
2 hereof, counsel may elect either:
a) to receive payment of normal fees without a success fee which the
solicitor shall pay not later than three months after termination:
("Option A"), or
b) to await the outcome of the case and receive payment of normal
and success fees if it ends in success: ("Option B").
(2) If counsel terminates the agreement because the solicitor, client or
Litigation Friend rejects advice under paragraph 5(8) (e) or 5(8)(f) counsel
is entitled only to "Option B".Termination by the Solicitor
(4) If the solicitor terminates the agreement under paragraph 7, counsel is entitled
to elect between "Option A" and "Option B".
Automatic Termination and Counsel taking silk
(5) If the agreement terminates under paragraphs 8 or 10 counsel is entitled
only to "Option B".
Challenge to fees
19. If the client or any Litigation Friend wishes to challenge:
a) the entitlement to fees of counsel or the level of such fees
following termination of the agreement ;or
b) any refusal by counsel after signing this agreement to accept
instructions the solicitor must make such challenge in accordance
with the provisions of paragraphs 14 and 15 of the Terms of Work
upon which barristers offer their services to solicitors (Annexe D
to the Code of Conduct of the Bar of England and Wales).
Return of Work
20. If counsel in accordance with the Bar's Code of Conduct is obliged to
return any brief or instructions in this case to another barrister, then:
1) Counsel will use his/her best endeavours to ensure that an appropriate
barrister agrees to act for the client on the same terms as this agreement;
If counsel is unable to secure an appropriate replacement barrister to act
for the client on the same terms as this agreement counsel will
not be responsible for any additional fee incurred by the solicitor or client.
2) Subject to paragraph 20(3) hereof, if the case ends in success counsel's
fees for work done shall be due and paid on the conditional fee basis
contained in this agreement whether or not the replacement barrister acts
on a conditional fee basis; but
3) If the solicitor or client rejects any advice by the replacement barrister of
the type described in paragraph 5(8) hereof, the solicitor shall immediately
notify counsel who shall be entitled to terminate this agreement under
paragraph 6(3).
PART SEVENASSESSMENT AND PAYMENT OF COSTS / FEES Costs Assessment
21. 1) If:
(a) a costs order is anticipated or made in favour of the client at an
interlocutory hearing and the costs are summarily assessed at
the hearing; or
(b) the costs of an interlocutory hearing are agreed between the parties
in favour of the client; or
(c) an interlocutory order or agreement for costs to be assessed in
detail and paid forthwith is made in favour of the client:
then
(i) the solicitor will include in the statement of costs a full
claim for counsel's normal fees; and
(ii) the solicitor will promptly conclude by agreement or
assessment the question of such costs; and
(iii) within one month of receipt of such costs the solicitor will
pay to counsel the amount recovered in respect of his/her
fees, such sum to be set off against counsel's entitlement to
normal fees by virtue of this agreement.
Solicitor’s Obligation to pay
22. 1) The amounts of fees and expenses payable to counsel under this
agreement
(a) are not limited by reference to the damages which may be
recovered on behalf of the client and
(b) are payable whether or not the solicitor is or will be paid by the
client or opponent.
2) Upon success the solicitor will promptly conclude by agreement or
assessment the question of costs and will pay Counsel promptly
and in any event not later than one month after receipt of such
costs the full sum due under this agreement.
Interest
23. The solicitor will use his best endeavours to recover interest on costs
from any party ordered to pay costs to the client and shall pay counsel
the share of such interest that has accrued on counsel's outstanding
fees.
Challenge to Success Fee
24. 1) The solicitor will inform counsel's clerk in good time of any challenge
made to his success fee and of the date, place and time of any detailed
costs assessment the client or opponent has taken out pursuant to the
Civil Procedure Rules and unless counsel is present or represented at
the assessment hearing will place counsel's risk assessment, relevant
details and any written representations before the assessing judge and
argue counsel's case for his/her success fee.
2) If counsel's fees are reduced on any assessment then:
a) the solicitor will inform counsel's clerk within seven days and
confer with counsel whether to apply for an order that the client
should pay the success fee and make such application on counsel's
behalf;
b) subject to any appeal or order, counsel will accept such fees as are
allowed on that assessment and will repay forthwith to the solicitor
any excess previously paid.
Disclosing the reasons for the success fee
25. 1) If (a) a success fee becomes payable as a result of the client's claim
and
(b) any fees subject to the increase provided for by paragraph12 hereof
are assessed and
(c) Counsel, the solicitor or the client is required by the court to
disclose to the court or any other person the reasons for setting
such increase as the level stated in this agreement,
he / she may do so.
Reduction on Assessment
26. If any fees subject to the said percentage increase are assessed and any amount of
that increase is disallowed on assessment on the ground that the level at which the
increase was set was unreasonable in view of the facts which were or should have
been known to counsel at the time it was set, such amount ceases to be payable
under this agreement unless the court is satisfied that it should continue to be so
payable.
Agreement on Fees
27. If the Opponent offers to pay the client's legal fees or makes an offer of
one amount that includes payment of Counsel’s normal fees at a lower
sum than is due under this agreement then the solicitor:
(a) will calculate the proposed pro-rata reductions of the normal and
success fees of both solicitor and counsel, and
(b) inform counsel of the offer and the calculations supporting the
proposed pro-rata reductions referred to in paragraph (a) above,
and
(c) will not accept the offer without counsel's express consent.
If such an agreement is reached on fees, then counsel's fees shall
be limited to the agreed sum unless the court orders otherwise.