The costs team at Kings Chambers warns against the dangers of overlooking past regulations
Many personal injury practitioners will be aware that paying parties are now arguing that certain consumer regulations apply to contracts of retainer. Contravention of those regulations can result in contracts to which they apply being unenforceable (and, in some circumstances, can also amount to a criminal offence). What seems not to have been fully appreciated is the fact that the regulations are not limited to those which have come into force only recently, but also include regulations which have already been in force for over 20 years.
Put bluntly, the profession seems to have overlooked those regulations, and there is a real risk that this means that many contracts of retainer are unenforceable. Solicitors with contracts of retainer that are at risk ought to consider whether they need to enter into retrospective agreements to avoid difficulties arising out of the indemnity principle.
This article makes no attempt to describe the regulations in detail or to explain how the regulations ought
