Andrew Warnock KC and Gurion Taussig successful in the Court of Appeal in costs case construing retrospectivity term in CFA

In a judgment handed down today, Singh and ors v Ingram (in his capacity as the Liquidator of MSD Cash and Carry PLC) [2025] EWCA Civ 264, Andrew Warnock KC and Gurion Taussig have successfully resisted a costs appeal by the paying party regarding the construction of a CFA.

Andrew and Gurion represented Mr Ingram, the liquidator of MSD Cash and Carry plc and who had obtained an indemnity basis costs order against Mr Singh and others following a lengthy High Court trial in 2018. Gurion initially represented Mr Ingram as sole counsel in lengthy detailed assessment proceedings, stretching over seven hearings from 2019.

Within its Points of Dispute, the paying party alleged that the CFA between Mr Ingram and his solicitors, Boyes Turner in March 2015 was not retrospective as had been contended.

The clause in issue stated that “If the Client wins the Claim it will be liable to pay to the Firm … the Basic Charges”. “Basic Charges” was defined as “charges of the Firm for the work done by the Firm for the Client In relation to the Claim”, while “Claim” was defined as “the application by the Client in his capacity as Liquidator of MSD PLC against the Defendant in relation to MSD Cash and Carry Plc – in Liquidation in respect of which the firm has been engaged since 30 March 2012.”

Before the Costs Judge in 2021 and upon appeal to the High Court [2023] EWHC 3488 (KB) Gurion successfully argued that the above-said clause was expressly retrospective term and that the defined terms did not render the term unclear.

In appealing to the Court of Appeal, the paying party argued that the term was not express, clear or unambiguous, and further that the factual matrix had not been properly considered, including an alleged lack of commercial imperative to the agreement and lack of advice by the solicitor to Mr Ingram as to the CFA’s retrospective effect.

The Court of Appeal rejected all the appellants’ grounds. Coulson LJ (with whom Asplin LJ and Baker LJ agreed) confirmed that on literal construction the clause was plainly expressly retrospective. He emphasised the principle that a retrospectivity clause in a CFA requires no set formulation. Further and significantly, the Court stated obiter, that it could see no reason why, as a matter of general principle, a retrospectivity term could not be implied into a CFA, provided the necessary test for implication had been established.

As to the significance of the factual matrix in contractual construction, the Court found the appellants’ arguments fundamentally misconceived. Coulson LJ stated that if accepted they would “open the floodgates for anyone with a contract they no longer wished to be bound by to argue that some event (or non-event) during negotiation had the effect of negating the express terms that had been agreed.” There was in any event commercial necessity for the retrospectivity clause in that it gave Mr Ingram “a proper degree of certainty about his liability for fees.” As to advice given, the Court found no basis for criticising the solicitors and made the general point that any failure of advice would in any event give rise to a disciplinary claim only and not comprise a basis to reverse the ordinary meaning of the words used in the contract.

The decision will be of relevance to all solicitors considering inclusion of retrospectivity within CFA’s and highlights the need for careful drafting of such contracts to ward off challenges to costs upon detailed assessment.

Andrew and Gurion were instructed by Rob Franks, Costs Director at Boyes Turner LLP.