I have a CFA with my client already. What if I wait until after 1st April to ask counsel to sign up?
Currently there is a great deal of debate and uncertainty concerning the recovery of Counsel success fees and ATE premiums incurred after 1 April 2013 where the solicitors CFA is entered into before that date.
The general consensus appears to be that any additional liabilities incurred after 1 April 2013 will not be recoverable from the losing side. They will therefore become a liability of the client (unless he has a pre-existing BTE insurance policy in place).
Should a client take out ATE insurance after 1 April 2013 then the insurance indemnity provided could be extended to include cover for Counsel’s fees as a disbursement. There would then be no need for a separate CFA with Counsel and the client would only need to fund the premium out of his damages in the event of success.
Another possible scenario is that Solicitors and Barristers will still offer CFAs after 1 April 2013 but with no success fees just to keep the work.
One thing seems perfectly clear, the changes will result in chaos for a long time to come coupled with much satellite litigation!
Comment by Jim Knight of Harmans following Jamie Clarke’s (Barrister at Hardwicke Chambers) CFA article which you can access below: