Milne v David Price Solicitors & Advocates

Following his successful libel action against the publishers of the Sunday Telegraph the Claimant (Milne) instructed the Defendant (DPSA) under a Conditional Fee Agreement (CFA) to act on his behalf in the detailed assessment of his costs. He had lodged a bill of costs claiming £105,000, which included a figure of £70,000 for costs incurred when acting for himself through his own firm in the 5 weeks between publication of the article and his being adjudicated bankrupt. Some weeks prior to the hearing of the costs assessment Milne instructed DPSA to accept an all-in offer of £42,000, which was below the Defendant’s Calderbank offer and well below what the CFA defined as an ‘acceptable offer of settlement’. The parties fell out, Milne disputing that he was liable in these circumstances to pay DPSA’s basic charges, DPSA contending that he had expressly agreed to be liable for them. Milne applied for a ruling accordingly.

Whether Milne was liable to pay DPSA’s basic charges, notwithstanding that the settlement figure did not amount to a ‘win’ under the CFA and was below what the CFA defined as ‘an acceptable offer of settlement’, and that the parties had not used the express language of termination of the CFA.

Dismissing the application and directing an assessment of DPSA’s bill: (1) the parties had agreed to treat the CFA as in effect terminated by the client, thereby triggering his liability to pay the solicitor’s basic charges under the terms of the CFA. (2) The Court rejected Milne’s version of events, preferring the evidence of DPSA’s employed barrister with conduct of the case; in particular it found that Milne, an experienced litigator, had expressly agreed to be liable for those fees before instructing DPSA to settle on those terms. (3) The Court also rejected Milne’s numerous allegations of negligence and breach of retainer, as well as any suggestion that he had thereby been forced into settling at an unacceptably low figure.

Just because a case done on a CFA is not ‘won’ it does not follow that it is ‘lost’. The ruling is a salutary reminder that (a) a CFA is a form of joint venture between lawyer and client, and both parties are committed to seeing it through or else suffering certain consequences; (b) parties when performing a contract do not always use language which falls within any of the particular situations provided for in the contract but may nevertheless act in a way which has the same legal effect. Lawyers entering into CFAs would do well to consider whether or not it is better to insert provisions dealing expressly with the various permutations that may arise when a case is settled before trial.