By Bipin Regmi, Senior Underwriter
This case study examines the Court of Appeal’s decision in Singh & Ors v Ingram [2025], which considered whether a Conditional Fee Agreement (CFA) could apply to work undertaken before it was signed. The case involved a detailed dispute over the interpretation of CFA terms, the role of implied intent, and the implications for cost recovery in contentious proceedings. It offers valuable insight for solicitors working under CFAs, particularly where retrospective coverage is in question.
In Singh & Ors v Ingram [2025], the Court of Appeal addressed the issue of whether a Conditional Fee Agreement (CFA) entered into by the respondent (the claimant in the original proceedings) and his solicitors had retrospective effect.
Background of the case
The respondent (a liquidator) of a company brought a claim against the appellant with allegations that the appellants had sought (through void dispositions, a false credit note and other illegitimate means) to diminish the assets available to the respondent.
HHJ Hodge KC found against the appellants and subsequently ordered payment of the respondent costs of the proceedings on an indemnity basis. This was because their conduct “both before and during the proceedings, has been so far outside the norm of commercial litigation
in general that it is appropriate that the costs should be assessed on the indemnity basis””.
The assessment of costs was a highly contentious affair. Numerous issues were raised before Costs Judge Nagalingam (“the Costs Judge”), which were heard over no less than seven separate hearings. The fifth hearing, on 20 September 2021, was taken up with the determination of the question whether the CFA was retrospective. The Costs Judge concluded that the CFA was retrospective.
The appellants appealed the decision on retrospectivity and other aspects. Lavender J, sitting with Costs Judge Rowley as an assessor, upheld the decision of the Costs Judge. The appellants, who were unsuccessful on two occasions, challenged the conclusions by the Costs Judge and the High Court. The retrospectivity issue alone was the subject of this second appeal.
What was the Court of Appeal decision?
1. The Grounds of Appeal in the Court of Appeal were framed in the following terms: The judge was wrong to find that the conditional fee agreement signed between the Claimant and his solicitors on 24th March 2015 was expressly retrospective. The term as to retrospectivity was not express, clear or unambiguous.
2. The judge was wrong to find that the combination of terms contained within the CFA was sufficient to amount to an express term on retrospectivity so as to disapply the presumption that a CFA will not be retrospective.
3. The judge erroneously treated the definition of “the Claim” and use of the word “Claim” in clauses 2 and 4 of the CFA as an express and unambiguous term on retrospectivity, notwithstanding the fact that the definition of “the Claim” could reasonably be interpreted as a pure description of the proceedings. The fact that the term “Claim” was capable of having more than one meaning ought to have led the judge
to conclude that it was not an unambiguous term on retrospectivity.
4. The judge failed to take into account (either sufficiently or at all) and failed to give proper weight to the “matrix of fact” which included clear evidence that the signatories to the CFA had no commercial imperative to sign a retrospective CFA.
5. The judge failed to take into account at all or failed to give proper weight to the “matrix of fact” which included clear evidence of the fact that the solicitor had at no time explained (or even mentioned) to their client that the CFA was designed to have retrospective effect (in a clear breach of their regulatory duties). The judge was wrong to dismiss this highly relevant fact.
The appellants argued that any term as to retrospectivity had to be express. Coulson LJ said that “I can see no reason why, as a matter of general principle, such a term could not be implied into a CFA, provided always that the necessary test for implication has been made out.
But since implication does not arise in the present case, I
need say no more about it.”
Coulson LJ found that the CFA was plainly retrospective and that anyone reading the CFA would have understood that it was retrospective because it covered – without distinction – the work done on the Claim from 13 March 2012 up to the date of the CFA, and all the work to be
done on the Claim thereafter.
Coulson LJ stated that there are no rules that the drafting of a CFA had to follow a particular form and that the solicitors work on the claim, from the beginning, was covered by the CFA. Coulson LJ also stated that for a CFA to be retrospective, there is no requirement that the word “retrospective” must be used. Coulson LJ found that the CFA was and was always intended to be retrospective.
Coulson LJ rejected Grounds 1, 2 and 3 of the appeal and stated that “The interpretation of those words is a simple and straightforward matter which gives rise to a perfectly sensible result.”
Coulson LJ found that the Costs Judge and Lavender J had regard to the matters and that the CFA gave the respondent a proper degree of certainty about the liability for fees. Coulson LJ further stated that respondent and the solicitors understood that the CFA superseded whatever had happened prior to the agreement and covered all the work done on the claim prior to its signing. Coulson LJ therefore dismissed Ground 4.
In respect of Ground 5 of the appeal, Coulson LJ stated that the appellant did not plead this argument, and that a finding that the solicitors were in breach of their duties was not sought from the costs judge, therefore it was not a finding that he made. Coulson LJ stated that it is wrong to ask the court on second appeal to make contentious finding of fact and declined to do so.
Coulson LJ stated “The appellants cannot avoid the obvious consequences of the CFA simply because – on this assumption – Boyes Turners Solicitors did not tell the respondent in express terms that the CFA was retrospective.” Coulson LJ therefore rejected Ground 5 of the appeal.
Coulson.
Coulson LJ concluded that “…I consider that, on its proper construction, the CFA was retrospective; the factual matrix and the findings of the Costs Judge only support that conclusion; and there is nothing in the authorities which requires a different decision. If my Lady and my Lord agree, I would dismiss this appeal.” Both Baker LJ and Asplin LJ agreed to dismiss the appeal.
Conclusion
In summary, the court found that the CFA was retrospective and that anyone reading the CFA would have understood that it was retrospective. The court also found that for a CFA to be retrospective, there is no requirement that the word “retrospective” must be used. CFAs must comply with section 58-58A of the Courts and Legal Services Act 1990 to be lawful and enforceable. It was expressly confirmed in Birmingham City Council v Forde [2009] that CFAs could be retrospective. It is important to consider that non-complaint CFAs are not
enforceable, and an unenforceable CFA means costs may not be recoverable, and law firms are not entitled to fees paid under an unlawful CFA. It is therefore important for law firms to consider drafting of CFAs and/or retrospective CFA as non-compliant CFAs can have costly
repercussions.
The Temple Perspective
This decision is important and will be relevant to many solicitors instructed under a CFA and those considering retrospective agreement within their CFAs. This decision shows that a careful consideration shall need to be done whilst considering retrospective CFAs. This decision also highlights the principle that the retrospective effect of a CFA depends on proper construction of the CFA. It may also be beneficial to explain the CFA and a CFAs retrospective effect carefully to clients and keep a record of the same, should challenges occurs in respect of costs
upon detailed assessment.
Please call Bipin Regmi on 01483 514414 or email with your questions and observations on this topic or to discuss your ATE insurance or disbursement funding requirements.
Bipin Regmi
Senior Underwriter
Bipin Regmi
Bipin qualified as a Solicitor in 2019. He has extensive experience dealing with personal injury, clinical negligence and professional negligence claims.
Bipin joined Temple as a Senior Underwriter in 2024.
With his knowledge of legal practice and understanding of risk assessment, Bipin brings a unique perspective to the underwriting process, ensuring that all decisions are informed by thorough analysis and sound judgement. His legal experience is invaluable to the business and our clients.
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