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Retrospective Conditional Fee Agreement
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In summary, I think that a CFA should always contain a clause confirming that the CFA is retroactive and from which it operates, or should contain context and an explanation in support of the thesis that the costs incurred before the date of the CFA were borne under the conditions of a private retainer. if the Privy Council found that, where a cost agreement was amended as a result of a judgment and therefore a cost decision, the paying party could choose whether it would bear the costs under the old or new agreement, whichever was more appropriate. The question of the eligibility of retroactive success fees was first raised some time ago in King v Telegraph Group Ltd  EWHC 90015 (Costs) (2). In the event that Master considered that a CFA could be retroactive, it would be wrong and contrary to public policy to allow the applicant`s lawyers to recover a retroactive fee for success. Further guidance on the value of the retrospective charge was taken into account in JN Dairies Ltd v Johal Dairies Ltd & Anor  EWHC 90211 (costs) (23 August 2011). The Claimant entered into a retroactive CFA approximately one month before the start of the appeal hearing. Therefore, a success fee of £60,000 was charged for work done before the CFA. In addition, the lawyer claimed a retroactive success fee of £234,000. The defendant argued that retroactive success fees should be prohibited on the ground that the funding disclosure did not state that the success fees related to the work performed and not to potential liabilities that affect the defendant`s position.
The applicant argued that there was no way for the defendant to act differently if the additional retroactive debts had been notified. . . .