Association members hope that the Bar Mutual Management Company, the firm appointed to manage the Bar Mutual Indemnity Fund, will respond by 3 December, when the CBA intends to make public the new CFA arrangement.
The plan is to make CFAs more user-friendly and to standardise them to suit all agreements rather than alter them to please the varying circumstances of each case.
“We've put all the terms and conditions which would be unlikely to need any other variations into a standard set of conditions”
Peter Griffiths, CBA
Counsel who choose not to use the association's redraft version may be subject to reduced insurance cover by Bar Mutual.
Peter Griffiths, a member of the CBA's conditional fee subcommittee, and a chancery barrister at 4 Stone Buildings, said: “If they don't use our version then they may have to check it themselves with the Bar Mutual. I'm not sure that the Bar Mutual will welcome being showered by different versions of CFAs, and counsel may find the insurance cover isn't what they'd like it to be.”
Describing the redraft, Griffiths said: “It's more user-friendly. When you enter into a CFA there's a 10-page agreement to read. You have to look at every clause every time and alter many of them to fit with the circumstances of your case. We've put all the terms and conditions which would be unlikely to need any other variations into a standard set of conditions.”
The bulk of chancery work in which CFAs are used is insolvency. The reason for this is twofold. First, clients do not have funds available up front; and second, according to Griffiths, solicitors or counsel are willing to do it using a CFA for longstanding clients on a favour basis. However, he described the financial advantage of doing so as uncertain.
There are surprising reports that CFAs are being used in commercial cases. However, they tend to feature in small, low-risk cases and ones in which risk analyses can be worked out. In a recent seven-day case involving a shareholder alleging unfair prejudice, which ran into several hundres of thousands of pounds, a silk and a junior were instructed on a CFA basis, and a fraud specialist lawyer said he knows of recent asset-tracing and freezing work in which CFAs were used.