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Hirachand v Hirachand

Date of Judgment: 15.10.21 | Court: Court of Appeal | Area of Law: Private Client Trusts and Probate

An award under the Inheritance (Provision for Family and Dependants) Act 1975 can include a lump sum to enable the claimant to discharge all or part of a success fee payable under a CFA.

The Court of Appeal addressed this issue for the first time in a significant judgment handed down this morning (15 October 2021) in Hirachand v Hirachand [2021] EWCA Civ 1498 (an appeal from the 2020 decision of Cohen J in Re H). 

The Court of Appeal determined that a CFA success fee is capable of being a debt, satisfaction of which is a ‘financial need’ pursuant to s.3(1)(a) of the Act (that term being unqualified and unlimited). It did, however, caution that a success fee is unlikely to be included in an award unless the judge is satisfied that the only way in which the claimant had been able to litigate was by entering into a CFA. This decision has potentially wide ramifications in the context of 1975 Act claims, particularly as to funding, interim relief to contribute towards legal costs, and the approach to ADR. Constance McDonnell QC (who did not appear below) represented the successful respondent in the Court of Appeal. 

Please click here for the judgment.