CFAs can be a very effective way of mitigating risk for the client and for you to receive an enhanced return. CFAs require much care. Bad drafting can lead to:
If you are considering offering your client a CFA, then you should read the notes on this area in PLC which explain what a CFA is and the requirements for creating a valid CFA. You should also follow the CFA guidelines below.
If you retain counsel on a CFA, then you must be mindful as to Keystone's liability to pay counsel's fees. According to the Bar Council's standard CFA, instructing solicitors are liable for counsel's fees in the event the client does not pay. Keystone therefore requires Costs on Account to cover all counsel's fees (including the success element). This is seldom feasible, so alternatives include adding wording similar to clause 9 basis B, C or D of the ComBar Terms or written confirmation that counsel will not look to Keystone to make up a shortfall of fees under any circumstances. If you don't do this and if the client does not pay counsel, then you will need personally to meet any award against the firm in respect of counsel's unpaid fees. For more guidance, you should refer to Instructing Barristers.'