Offshore Litigation

Blog

Offshore Litigation

Contributors

Jonathan Addo
Jonathan Addo
  • Jonathan Addo

  • Partner
  • British Virgin Islands
Jeremy Child
Jeremy Child
  • Jeremy Child

  • Partner
  • London
Stuart Cullen
Stuart Cullen
  • Stuart Cullen

  • Partner
  • British Virgin Islands
Julie Engwirda
Julie Engwirda
  • Julie Engwirda

  • Partner
  • Hong Kong
Peter Ferrer
Peter Ferrer
  • Peter Ferrer

  • Partner
  • British Virgin Islands
Claire Goldstein
Claire Goldstein
  • Claire Goldstein

  • Partner
  • British Virgin Islands
Hazel-Ann Hannaway
Hazel-Ann Hannaway
  • Hazel-Ann Hannaway

  • Partner
  • British Virgin Islands
Nick Hoffman
Nick Hoffman
  • Nick Hoffman

  • Partner
  • Cayman Islands
Andrew Johnstone
Andrew Johnstone
  • Andrew Johnstone

  • Partner
  • Hong Kong
Paula Kay
Paula Kay
  • Paula Kay

  • Partner
  • Hong Kong
Phillip Kite
Phillip Kite
  • Phillip Kite

  • Partner
  • London
Vicky Lord
Vicky Lord
  • Vicky Lord

  • Partner
  • Shanghai
Paul Madden
Paul Madden
  • Paul Madden

  • Partner
  • Cayman Islands
Henry Mander
Henry Mander
  • Henry Mander

  • Partner
  • Cayman Islands
Ian Mann
Ian Mann
  • Ian Mann

  • Partner
  • Hong Kong
William Peake
William Peake
  • William Peake

  • Partner
  • London
Lorinda Peasland
Lorinda Peasland
  • Lorinda Peasland

  • Consultant
  • Hong Kong
Chai Ridgers
Chai Ridgers
  • Chai Ridgers

  • Partner
  • Hong Kong
Nicola Roberts
Nicola Roberts
  • Nicola Roberts

  • Partner
  • Hong Kong
  • Singapore
Paul Smith
Paul Smith
  • Paul Smith

  • Partner
  • Cayman Islands
Andrew Thorp
Andrew Thorp
  • Andrew Thorp

  • Partner
  • British Virgin Islands
Jessica Williams
Jessica Williams
  • Jessica Williams

  • Partner
  • Cayman Islands
Jayson Wood
Jayson Wood
  • Jayson Wood

  • Partner
  • Cayman Islands

Read it before you sign it!

The High Court of England and Wales recently considered the enforceability of certain provisions of a Conditional Fee Agreement (CFA) in Higgins & Co Lawyers Ltd v Evans.

This was an appeal against a finding of a Master of the High Court that a provision of a CFA was unenforceable. That provision was that the estate of a deceased litigant party to the CFA was said to be liable for basic charges in respect of legal work undertaken by solicitors prior to his death. Master McCloud held that clause to be unenforceable in accordance with the Interfoto principle (Interfoto Picture Library Limited v Stiletto Visual Programmes Limited). According to that principle, the relevant test is as follows:

  • Was the provision onerous or unusual?
  • If the provision was onerous or unusual, had it been fairly and reasonably brought to the other party’s attention?

The High Court summarised the substance of the Interfoto principle in modern case law which was reviewed relatively recently by the English Court of Appeal in Goodlife Foods Ltd v Hall Fire Protection Ltd (previously blogged here). The basic principle is that it is well-established at common law that if a party knows that there are standard conditions provided as part of an offer, a condition which is particularly onerous will not be incorporated unless it has been fairly and reasonably brought to the other party’s attention – the more outlandish the provision, the greater the onus that it be brought to the other party’s attention. The High Court observed that the principle in Interfoto is not concerned with a general doctrine of unfairness in contract law and cited the well-known authority of L’Estrange v Graucod as authority for the proposition that a person who signs a document knowing that it is intended to have legal effect is generally bound by its terms, whether he or she has actually read them or not.

The Court overturned the decision of the Master, holding that the particular provision was enforceable. The decision provides helpful clarification that the Interfoto principle does not apply where the document has been read, understood and signed.

Read it before you sign it!

Leave A Comment