The decision of Cox –v- Woodlands Manor Care Home (2015) EWCA Civ 415 has held that if a solicitor fails to give a client notice of the right to cancel an agreement, which was a CFA in this case, then it would be unenforceable and no costs could be recovered from the paying party due to the indemnity principle.
This decision was made on the basis of the Cancellation of Contracts Made in a Consumers Home or Place of Work etc Regulations (2008). These regulations have since been replaced by the Consumers Contracts (Information, Cancellation and Additional Charges) Regulations (2013). However, the general obligations under both sets of regulations are similar.
In the circumstances, it is vital that solicitors review their retainer documentation to ensure compliance with the regulations. We are finding that Defendant’s representatives are increasingly taking the point as to whether relevant notice has been given. The retainer documentation will need to be provided to the Court ahead of any assessment of costs.