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Harrison & Anor v Black Horse Ltd [2013] EWHC B28 (Costs) - 20/12/13


Application for relief from sanctions for failing to serve notice of a Court of Appeal conditional fee agreement in order to recover success fees.

Held: The purpose of the requirement that a party discloses its funding arrangements is so that the other party may know that it may face a liability to pay success fees or insurance premiums if it is ordered to pay costs. The automatic sanction for failure to serve notice of a change in funding is that the defaulting party cannot recover success fees unless relief is granted by the court. In an application for relief, the onus is on the defaulting party to show good reason for a non-trivial failure (CPR 3.9(2)). The circumstances of the case are relevant, although the overriding objective (CPR 3.9) is given paramount importance. Guidance in Mitchell followed. Forstater distinguished on the facts: that case related to a trivial failure of form rather than substance.

Application refused. In the present case, although the failure was not intentional, there was evidence that the defendant was prejudiced, in that it would have been given different advice in relation to settlement.