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9 月

Conditional Fee Agreement Maximum Uplift

50. The setting of success fees in the context of a contingency fee agreement is traditionally linked to an assessment of the risk of procedural default in that country. In its judgment ([29]-[30],Soole J presented a clear and detailed description of the difference between the treatment of an increase under a contingency fee agreement in a cost assessment between the parties and an assessment between the lawyer and the client before and after LASPO. For the purposes of this appeal, it is sufficient to say this. Prior to April 2013, when deciding whether or not a success fee between the parties could be considered a reasonable cost, the relevant factors to be considered were “the risk that the circumstances in which the costs, fees or expenses are to be paid will occur or not”, the facts and circumstances having been assessed, the manner in which they reasonably appeared to the lawyer or lawyer when the financing agreement was concluded. Date of possible modification of the order: see 44PD.5, para. 11.7 and 11.8(1) (a). The same consideration applied to the assessment of the lawyer and the client where the client had entered into a contingency fee agreement: cf. 48.PD.6 para. 54.5 (1) -54.8. LASPO has removed the right to recover success fees between the parties.

These provisions in the previous practical instructions and the corresponding provisions of the Roof Regulation have been repealed. They are not reproduced in the current CPR 46.9 or in 46. But since Soole J passed away and Mr Kirby spoke, the text of CPR 46.9 (4) indicates that it was provided that a success fee would be associated with the risk: the reference to the practice of the lawyer or lawyer when entering into or amending the contingency fee agreement closely reflects the language in paragraphs 5 11.7 and 48PD.6, subsection 54.5(2). At present, due to a lack of clarity in the drafting of regulations, it is not certain that a partial DBA will be allowed. For example, it is not certain that an agreement guaranteeing a percentage of attorneys` fees regardless of the outcome, with the balance depending on the damages recovered, would be enforceable. The current rules continue to apply to ASAs that were adopted before 1 for ATE policies that were concluded before April 1, 2013. There are provisions designed to prevent the parties from circumventing the amendments by adopting, before the reference date, a collective CFA relating to a class of proceedings and not to a specific claim. If the agreement is a collective CFA, there is an additional requirement that advocacy or process services related to the specific claim be provided to the party prior to April 1, 2013. . . .

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