Agreement for Costs on a Contingency Basis
| DOI | http://doi.org/10.1177/002201839906300508 |
| Published date | 01 October 1999 |
| Date | 01 October 1999 |
| Subject Matter | Article |
TheJournal of
Criminal
Law
that he genuinely believed that 'ordinary' people would regard it as
reasonable to strike the operator of a mechanical digger with a piece of
timber in
the
course of an argument.
Agreement for Costs on a Contingency Basis
Hughes
v
Kingston
upon
Hull
City
Council
[1999] 2 All ER 49
The appellant in this case was a council tenant of property which
suffered from dampness to such an extent that it was alleged to' con-
stitute anuisance under s 79(1)(a) of the Environmental Protection Act
1990. He served a notice on the council and commenced proceedings for
an order under s 82(2) of
the
Act. Before the hearing in these proceed-
ings, the council had carried out the works necessary to remedy the
situation with the result that no evidence was .offered
and
the pro-
ceedings were withdrawn. The appellant applied for a costs order
under
s 82 (12) ofthe Act. Before the proceedings had begun,
the
appellant had
signed an agreement with his solicitors, which set
out
the terms relating
to
the
costs in the event of his action proving successful,
but
which said
nothing as to
the
payment of costs in any other event.
In
the magistrates'
court, the agreement was construed as meaning that no claim would be
made by
the
solicitors for costs in the absence of proceedings which
terminated successfully. This was construed to
mean
'that the solicitors
had
agreed to act on his behalf on a contingency basis. As that would be
contrary to public policy in criminal proceedings, the court held that the
appellant was
not
entitled to costs because: (1) as a matter of law costs
were
not
enforceable, and (2) in fact, it was never the intention of
the
solicitors to proceed against the appellant for costs. The appellant ap-
pealed from that decision by way of case stated.
Section 79 of theEnvironmental Protection Act 1990 provides that
any premises in such a state as to be prejudicial to health isa (statutory)
nuisance. Section 82(2) provides that
if
the nuisance exists or,
if
abated,
is likely to recur, the court may make an order to abate it by the
execution of works necessary for that purpose and prohibit its recur-
rence. By s 82(12), it is provided that where the nuisance existed at the
time of the complaint, then, whatever may have been the intervening
events in
the
course of
the
proceedings, the court may order
the
pay-
ment
to the person bringing the proceedings of costs reasonably suffi-
cient to compensate him for his expenses in bringing the proceedings.
Rule 8(1) of the Solicitors Practice Rules 1990, made pursuant to s 31 of
who
is retained to
representa client in
any
contentious proceeding shall not enter into any
agreement to receive a contingency fee in respect of that proceeding. By
r 18(2)(c) contingency fee is defined as meaning
'any
sum
...
payable
only in the event of success in the prosecution or defence ofan action or
suit or other contentious proceeding'.
As the appellant was an impecunious old age pensioner
and
was
unaware of the course of the proceedings or the fact that it was being
404
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