The recent High Court Judgment of O’Brien V Shorrock & The MIB  addresses the issue of the information which is required to be provided in the Notice of Funding regarding the date of the Conditional Fee Agreement.
The Claimant’s solicitors had entered into (signed) a Conditional Fee Agreement with the Claimant’s Litigation Friend on the 21st October 2009. Within the Conditional Fee Agreement it was confirmed that the agreement retrospectively took effect from the 6th November 2008.
When the Notice of Funding was provided it stated that the date of the Conditional Fee Agreement was dated the 6th November 2008.
This issue came to light and the Claimant was compelled to disclose the Conditional Fee Agreement in which it was revealed that the date of the Conditional Fee Agreement was actually the 21st October 2009.
The Defendant took issue to this arguing that the Claimant had attempted to claim a success fee for the maximum amount of time without alerting the Defendant to the possibility that there should have been a lower success fee (or none at all) for the first period when the Conditional Fee Agreement had retrospective effect.
Following an Application for Relief from Sanctions, the Judge found that there had been a breach of the rules in that the incorrect date of the Conditional Fee Agreement had been provided in the Notice of Funding, however relief was granted (mainly due to the negligible sums involved), albeit with a sanction that the recoverable success fee over the retrospective period was halved from 40% to 20%.
The message to solicitors a result of this case is clear. When completing a Notice of Funding, rather than using the “effective from” date within the Notice of Funding, where the Conditional Fee Agreement is retrospective, solicitors must use the date on which the Conditional Fee Agreement was entered into or signed, not the effective date.