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PIBA STANDARD TERMS & CONDITIONS FOR CFAs

FROM 1ST APRIL 2013 (incorporated into the Short Form CFA)

1. Binding nature of agreement
2. Obligation of Counsel to Act Diligently
3. Inappropriate Instructions
4. Obligations of Solicitor
5. Termination by Counsel
6. Termination by The Solicitor
7. Automatic Termination
8. Counsel Taking Silk
9. Errors and Indemnity for Fees
10. On Termination of the Agreement by Counsel, by Solicitor and Automatic Termination
11. Challenge to the Success Fee
12. Return of Work
13. Costs Assessment
14. Interest
15. Challenge to Normal or Success Fee
16. Agreement on Fees
17. Severance
18. Jurisdiction
19. Trust
20. Intellectual property Rights
21. Money Laundering

1. Binding Nature of the Agreement
(1) Unless they specify otherwise, the delivery of the first instructions to Counsel in an individual case with a request that he/she undertake that case on a conditional fee basis shall constitute an offer to Counsel to undertake that case in accordance with the terms of the Edition of the APIL/PIBA Conditional Fee Agreement then current (details of which are published on Counsel’s Chambers’ website) with such a success fee between 0% and 100% as Counsel deems appropriate.

(2) Counsel will not be not bound to act on a conditional fee basis until he/she has completed and sent to the Solicitor a short form conditional fee agreement (if necessary with a risk assessment form setting out Counsel’s success fee and the reasons therefore) and the sending of this agreement shall constitute acceptance by Counsel of the Solicitor’s offer and a contract on these terms will bind the parties without the need for any signature by the solicitor or further communication.

(3) Provided that if either the first instructions specify that (1) above shall not apply or the Solicitor informs Counsel within 7 days of receipt of the signed short form conditional fee agreement that the terms of the same are not acceptable (in circumstances where the Solicitor has not already expressly accepted the same), then a contract on these terms will only be binding on the parties when the solicitor signs the short form agreement.

2. Obligation of Counsel to act diligently
Counsel agrees to act in accordance with clause 8 of the Bar Council’s (New) Standard Contractual Terms for the Supply of Legal Services by Barristers to Authorised Persons 2012 which state:
“8.1 The Barrister will exercise reasonable skill and care in providing the Services. The Barrister acknowledges the existence of a duty of care owed to the Lay Client at common law, subject to his professional obligations to the Court and under the Code.
8.2 The Barrister will provide the Services by such date as may be agreed between the parties and in any event will do so within a reasonable time
having regard to the nature of the Instructions and his other pre‐existing professional obligations as referred to in paragraph 701 of the Code.
8.3 The Barrister may delegate the provision of any part of the
Services but will remain responsible for the acts, omissions, defaults or
Negligence of any delegate as if they were the acts, omissions, defaults or negligence of the Barrister.
8.4 The Barrister will, in addition, provide all information reasonably required to enable the Lay Client and/or Authorised Person to assess what costs have been incurred and to obtain and enforce any order or agreement to pay costs against any third party.”


3. Inappropriate Instructions
Counsel is not bound to accept inappropriate instructions:
(1) to appear at any hearing where such instructions would be disproportionate to the nature of the hearing and where it would be reasonable (a) for Counsel to consider that Counsel's fees would not be allowed on assessment; or (b) for the Solicitor 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.

4. Obligations of the solicitor
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 costs budgets and conditional fee agreements;
(2) promptly to apply for relief from sanction pursuant to CPR part 3 if any default under the CPR 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 or costs budget 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
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;
(g) any other factor coming to the Solicitor's attention which may affect Counsel's entitlement to 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 or an substantial issue in 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 or any hearing;
(10) to deliver the brief to Counsel in accordance with the short form agreement between the Solicitor and Counsel;
(11) to inform Counsel promptly if the case concludes at any time before the date fixed for trial;
(12) if any summary assessment of costs takes place in the absence of Counsel, to 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 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
(15) when drawing up a costs bill at any stage of the case to include in it a claim for Counsel’s fees and interest on Counsel's fees.


TERMINATION
5. Termination by Counsel
Counsel may terminate the agreement if:
(1) Counsel discovers any fact or document which should have been disclosed to him 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 4 hereof;
(3) the Solicitor, Client or any Litigation Friend rejects Counsel's advice in any respect set out in paragraph 4(8) hereof;
(4) Counsel is informed or discovers the existence of any set-off or counter-claim 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
(8) if the Opponent receives Community Legal Service funding.

6. Termination by the Solicitor
The Solicitor may terminate the agreement at any time on the instructions of the Client or any Litigation Friend.

7. Automatic Termination
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 court makes a Group Litigation Order covering this claim.


8. Counsel taking Silk
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.

9. Errors and Indemnity for Fees
(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 if the claim becomes unenforceable against the MIB for breach of the terms of the Uninsured Drivers Agreements or the Untraced Drivers Agreements:
the Solicitor shall (subject to sub paragraphs (3) - (6) hereof) pay Counsel such normal fees as would have been recoverable under the Agreement to the date of strike out.
(2) If, 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 to the date of strike out.
(3) If, because of non-compliance by the Solicitor of the obligations under sub-paragraphs (1), (2), (12) or (13) of paragraph 4 above, Counsel's success fee is not payable by Client then the Solicitor shall (subject to sub-paragraphs (5) to (7) hereof) pay Counsel such success fees as would have been recoverable under the 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 the Solicitor and Counsel, 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.


On Termination of the Agreement
10. Termination by Counsel, Solicitor or Automatic Termination

10.1 Termination by Counsel
(1) If Counsel terminates the agreement under paragraph 5 then, subject to sub-paragraph 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 4(8) (e) or 4(8)(f) Counsel is entitled only to "Option B".

10.2 Termination by the Solicitor
If the Solicitor terminates the agreement under paragraph 6, Counsel is entitled to elect between "Option A" and "Option B".

10.3 Automatic Termination and Counsel taking silk
If the agreement terminates under paragraphs 7or 8 Counsel is entitled only to "Option B".

11. Challenge to fees
If the Client 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 writing within 14 days of termination or refusal.

12. Return of Work
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;
(2) 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.
(3) 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
(4) If the Solicitor or Client rejects any advice by the replacement barrister of the type described in paragraph 4(8) hereof, the Solicitor shall immediately notify Counsel who shall be entitled to terminate this agreement under paragraph 5(3).

ASSESSMENT AND PAYMENT OF COSTS / FEES
13. Costs Assessment - interlocutory

If:
(1) 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
(2) The costs of an interlocutory hearing are agreed between the parties in favour of the Client; or
(3) An interlocutory order or agreement for costs to be assessed in detail and paid forthwith is made in favour of the Client:
Then:
(a) The Solicitor will include in the statement of costs a full claim for Counsel's normal fees; and
(b) The Solicitor will promptly conclude by agreement or assessment the question of such costs; and
(c) 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.

14. Interest
The Solicitor will use his best endeavours to recover interest on Counsel’s fees 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.

15. Challenge to Normal or Success Fees
The Solicitor will inform Counsel's clerk in good time of any challenge made to his or her normal fees or success fees 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 will provide Counsel with the opportunity to make written or oral representations in support of his/her fees at any assessment 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.

16. Agreement on Fees
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:
(1) Will calculate the proposed pro-rata reductions of the normal and success fees of both Solicitor and Counsel, and
(2) inform Counsel of the offer and the calculations supporting the proposed pro-rata reductions referred to in paragraph (a) above, and
(3) Will not accept the offer without Counsel's express consent.
If such an agreement is reached on the fees recoverable from the Opponent, then Counsel's fees may be limited to the agreed sum (unless the court orders otherwise).


17. Severance
If any provision of this agreement is found by any competent court to be invalid, illegal or unenforceable in whole or in part for whatever reason, then it shall be deemed to be severed from this agreement to the extent only of such invalidity, illegality or unenforceability and the remaining provisions of this agreement and the remainder of the provision in question shall continue in full force and effect unimpaired by such severance.

18. Jurisdiction
In the event of dispute, the parties agree to submit to the exclusive jurisdiction of the Courts of England and Wales in respect of any dispute arising out of or under the terms of the agreement between Counsel and Solicitor.

19. Trust
(1) The Solicitor holds on trust for Counsel such part of the debt that the Client owes the Solicitor as relates to Counsel’s fees and, at Counsel’s request, will assign the benefit of that debt to Counsel and do all such things as are necessary to perfect Counsel’s title to that debt.
(2) The Solicitor further holds on trust for Counsel any sum that he recovers from an Opponent in respect of Counsel’s fees and agrees that he will hold such sums in a separate account until he pays it to Counsel.

20. Intellectual Property Rights
All copyright and other intellectual property rights of whatever nature in or attaching to the Barrister’s work product, including all documents, reports, written advice or other materials provided by the Barrister to the Solicitor or the Lay Client belong to and remain with the Barrister. The Solicitor and the Lay Client have the right and licence to use the Barrister’s work product for the particular Case and the particular purpose for which it is prepared. If the Solicitor or the Lay Client wishes to use copies of the Barrister’s work product for purposes other than those for which it is prepared, this will require the express written permission of the Barrister. The moral rights of the Barrister in respect of his work product are asserted.

21. Money Laundering

(1) Notwithstanding acceptance of Instructions in accordance with paragraph 1.1 above, the Barrister shall be entitled to carry out any customer due diligence required by the Money Laundering Regulations 2007. The Solicitor will provide the Barrister with all reasonable assistance to carry out any necessary customer due diligence including (if required to do so) consenting to the Barrister relying upon the Solicitor under Regulation 17 of the Money Laundering Regulations 2007.

(2) In the event that the Barrister reasonably considers that the requirements of the Money Laundering Regulations have not been satisfied he may within a reasonable period after receipt of the Instructions withdraw any acceptance of those Instructions without incurring any liability.

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