Cash & carry loses costs ambiguity appeal

Singh and others v Ingram [2025] EWCA Civ 264 concerned litigation begun in 2015 by Ingram, in his capacity as liquidator of MSD Cash and Carry, against Singh and others, who are former directors of MSD. The High Court had found the directors sought to diminish the assets available to the liquidator and ordered them to pay Ingram’s costs on an indemnity basis. This decision was not appealed. However, the assessment of those costs became highly contentious, including on the issue of whether the CFA between Ingram and his solicitors Boyes Turner was retrospective.

The relevant clause in the CFA stated the client would be liable to pay the firm ‘the basic charges’ if successful. The ‘basic charges’ were defined as work done in relation to the ‘claim’. The ‘claim’ was defined as the application by the client (Ingram) as liquidator against the defendant in relation to MSD ‘in liquidation in respect of which the firm has been engaged since 30 March 2012’.

The High Court held the clause was expressly retrospective. The appellant argued the term was not express, clear or unambiguous as regards its retrospectivity, and the judge failed to take into account or 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’ and that there was a lack of advice by the solicitor as to retrospectivity.

Delivering the main judgment, however, Lord Justice Coulson dismissed the appeal.

Andrew Warnock KC and Gurion Taussig, of Deka Chambers, acting for Ingram, said Coulson LJ found ‘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’.