I’m using a conditional fee agreement. Do I need to notify the other side?

Is there a requirement to notify the other side about a conditional fee agreement that I’m entering into with my client?

Under the Legal Aid, Sentencing, and Punishment of Offenders Act 2012 (LASPO), whether you need to tell the other side about a conditional fee agreement (CFA) entered into after 1 April 2013 depends on whether any “additional liabilities” are recoverable from the other side if they lose.

Additional liabilities are only recoverable under new CFAs in limited classes of proceedings, such as:

• diffuse mesothelioma claims – success fee and after the event (ATE) insurance premium
• certain clinical negligence claims – ATE premium only and subject to conditions

Where such a case is funded by a CFA, notification should be given, within the letter of claim:

• of the existence of the agreement, and
• where appropriate, that there is a success fee and insurance premium (although not the level of the success fee or premium)

For further information, see the pre-action protocol for disease and illness claims.

Previously, additional liabilities were recoverable under CFAs in insolvency-related proceedings, and publication and privacy proceedings.

However, CFAs entered into after 6 April 2016 in insolvency-related proceedings no longer qualify for the recoverability of additional liabilities.

In addition, CFAs entered into after 6 April 2019 in publication and privacy proceedings no longer qualify for the recoverability of success fees, although ATE premiums remain recoverable.

For more information, see:

• sections 44, 46 and 48 of LASPO
• part 48 and practice direction 48 of the Civil Procedure Rules