224. Damages-based agreements
Past version: effective from 17/12/2015 - 23/06/2020
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(1) A damages-based agreement —
(a) which satisfies the conditions in subsection (3) is not unenforceable by reason only of its being a damages-based agreement; but
(b) which does not satisfy those conditions is unenforceable.
(2) For the purposes of this section a damages-based agreement is an agreement between a person providing advocacy or litigation services and the recipient of those services which provides that —
(a) the recipient is to make a payment to the person providing the services if the recipient obtains a specified financial benefit in connection with the matter in relation to which the services are provided; and
(b) the amount of that payment is to be determined by reference to the amount of the financial benefit obtained.
(3) The agreement —
(a) must be in writing;
(b) must not relate to proceedings which cannot be the subject of an enforceable conditional fee agreement or to proceedings of a description prescribed by the Board;
(c) if rules so provide, must not provide for a payment above a prescribed amount or for a payment above an amount calculated in a prescribed manner;
(d) must comply with such other requirements as to its terms and conditions as are prescribed; and
(e) must be made only after the person providing the services under the agreement has complied with such requirements (if any) as may be prescribed as to the provision of information.
(4) Rules made under subsection (3) is to be made by the Board and may make different provision in relation to different descriptions of agreements.
(5) Before making rules under subsection (3), the Board must consult —
(a) the Chief Justice; and
(b) such other bodies or persons as it considers appropriate.
(6) Court procedure rules may make provision with respect to the assessment of costs in proceedings where a party in whose favour a costs order is made has entered into a damages-based agreement in connection with the proceedings.
(7) In this section "payment" includes a transfer of assets and any other transfer of monies' worth (and the reference in subsection (3)(c) to a payment above a prescribed amount, or above to an amount calculated in a prescribed manner, is to be construed accordingly).
(8) In this section (and in the definitions of "advocacy services" and "litigation services" as they apply for the purposes of this section) "proceedings" includes any sort of proceedings for resolving disputes (and not just proceedings in a Court), whether commenced or contemplated.
(9) Nothing in this section applies to an agreement entered into before the coming into force of the rules made under subsection (3).