Various provisions of the Motor Accidents Compensation Act 1999 regulate legal costs. One such provision is s149, which permits regulations to fix maximum costs for certain legal services and related matters. Division 2 of the Motor Accidents Compensation Regulation 2005 is made under s149 and sets certain maxima, but clause 11 permits contracting out. Both s149 and cl11 still refer to provisions of the LPA 1987 rather than LPA 2004.
It is not clear how the contracting-out provisions map across to the 2004 Act, given that the new Act does not require disclosure under s309 or 310 by a barrister to a client where the barrister is retained by solicitors acting on behalf of the client. It is not clear whether it is (a) necessary or (b) sufficient that the solicitors have made the requisite disclosure to the client, nor whether a separate act of disclosure is required by a barrister to a client. The safest course is to ensure that both solicitors and barrister make the prescribed disclosure to the client by a separate document of the kind contemplated by the Regulation, with receipt acknowledged by the client in writing to facilitate proof. The requirement does not distinguish between plaintiffs and defendants; prima facie, it applies to defendants’ work as well as plaintiffs’ work.
The content of the required disclosure is straightforward, but it must be provided ‘before entering into the costs agreement and ‘in a separate written document’. After prefatory matters and reference to the relevant claim under the Act and the proposed Costs Agreement, the separate, written document addressed to the client may say something like the following:
Even if costs are awarded in your favour, you will be liable to pay such amount of the costs provided for in the costs agreement as exceeds the amount that would be payable under the Motor Accidents Compensation Act 1999 in the absence of a costs agreement.