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CONDITIONAL FEE AGREEMENTS

It is possible to enter into an enforceable CFA for all types of civil litigation,12 except family proceedings.13 CFAs are not permissible in criminal proceedings apart from those under s 82 of the Environmental Protection Act 1990.14

Historically, CFAs were held to be contrary to public policy on the basis that it was undesirable for legal representatives to have an interest in the outcome of the cases they were conducting. This long standing policy was changed by s 58 of the Courts and Legal Services Act 1990, which was the framework legislation paving the way for the introduction of CFAs. CFAs were initially introduced only for certain types of case to be specified by regulations made by the Lord Chancellor. In 1995, the Conditional Fee Agreements Order 199515 provided that CFAs were permissible for personal injury, insolvency and cases before the European Commission of Human Rights and the European Court of Human Rights. In July 1998, the Conditional Fee Agreements Order 1998 extended CFAs to all civil non-family proceedings.16 It is anticipated that CFAs will eventually be extended to those aspects of family cases concerned with the division of matrimonial property.17