What do you have to do to ensure that Parts 43 to 48 of the existing rules continue to apply to CFAs entered into before 1st April 2013? Do advocacy or litigation services have to be provided before 1st April 2013 or not?
For the existing rules to continue to apply to CFAs entered into before 1st April 2013 what needs to be done prior to 1st April 2013 will depend on whether you are acting under a Conditional Fee Agreement or a Collective Conditional Fee Agreement (those are the two funding arrangements defined by rule 43.2(1)(k)(i) of the existing rules).
If you enter into a Conditional Fee Agreement prior to 1st April 2013 specifically for the purposes of provision of advocacy or litigation services to a person in relation to the matter which is the subject of proceedings then the new rules (CPR r.48.2(1)(a)(i)(aa)) state that the old Parts 43 to 48 will apply (with modifications about which we are yet to hear). There does not appear to be any suggestion that advocacy or litigation services actually need to be provided prior to 1st April 2013.
The story is different if you have a Collective Conditional Fee Agreement. In that case the new rules seem to state that, for the old rules to apply, you have to have provided advocacy or litigation services to the person by whom the success fee is payable prior to 1st April 2013.
The drafters of the rules could have made it a lot easier to understand what they were getting at by actually referring to CFAs in r.48.2(1)(a)(i)(aa) and CCFAs in r.48.2(1)(a)(i)(bb).
A bit more clarity is provided by the explanatory note to Article 6 of the Conditional Fee Agreements Order 2013 (http://www.legislation.gov.uk/ukdsi/2013/9780111533437) which states “Article 6 contains a transitional and saving provision. The effect of the transitional provision is to provide that articles 4 and 5 do not apply to a CFA entered into in respect of a claim for personal injuries, or to a collective CFA under which advocacy or litigation services are provided to a person in respect of that claim, before the day on which these regulations comes into force” (i.e. 1st April 2013).
That’s my take on the current rules which are still being finalised. I ought to add, in the time-honoured fashion, that this does not constitute legal advice and liability for any reliance placed on it is disclaimed…