PART 8A | CONDITIONAL FEE AGREEMENTS |
[Act 8 of 2022 wef 04/05/2022] | Application and interpretation of this Part |
115A.—(1) In this Part, unless the context otherwise requires —| “a solicitor, a foreign lawyer or a law practice entity” means a solicitor, a foreign lawyer or a law practice entity to whom or to which subsection (2) applies; |
| “conditional fee agreement” means an agreement relating to the whole or any part of the remuneration and costs in respect of contentious proceedings (whether relating to proceedings in Singapore or any state or territory outside Singapore) conducted by a solicitor, a foreign lawyer or a law practice entity, which provides for the remuneration and costs or any part of them to be payable only in specified circumstances, and may provide for an uplift fee; |
| “contentious proceedings” means proceedings before a court of justice or an arbitrator or any other dispute resolution proceedings; |
| “prescribed proceedings” means the contentious proceedings or class of contentious proceedings that are prescribed in regulations made under section 115B(7); |
“uplift fee”, in relation to a conditional fee agreement, means the remuneration or costs which the agreement provides are payable in specified circumstances which are higher than the remuneration or costs that would otherwise be payable if there were no conditional fee agreement, and which may be determined by (but not limited to) reference to the difference between —| (a) | the gross sum or hourly rates of remuneration or costs (as the case may be) which the agreement provides are payable in specified circumstances; and | | (b) | the gross sum or hourly rates of remuneration or costs (as the case may be) which would otherwise be chargeable if there were no conditional fee agreement. |
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(2) This Part applies to —| (a) | a conditional fee agreement in relation to remuneration or costs in prescribed proceedings entered into on or after the date of commencement of section 6 of the Legal Profession (Amendment) Act 2022; | | (b) | all remuneration and costs received by a Singapore law practice or a solicitor practising in a Singapore law practice, including any such remuneration and costs received in respect of the practice of foreign law; and | | (c) | all remuneration and costs received in respect of the practice of Singapore law by —| (i) | a Joint Law Venture or its constituent foreign law practice, a Qualifying Foreign Law Practice or a licensed foreign law practice; | | (ii) | a foreign lawyer registered under section 36B; or | | (iii) | a solicitor registered under section 36E. [Act 8 of 2022 wef 04/05/2022] |
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| Conditional fee agreement for prescribed proceedings |
115B.—(1) A solicitor, a foreign lawyer or a law practice entity may make with a client a conditional fee agreement in relation to remuneration or costs in prescribed proceedings.(2) Where the requirements mentioned in subsection (4) are complied with in relation to a conditional fee agreement, the agreement —| (a) | is not unenforceable by reason only of its being a conditional fee agreement; and | | (b) | is not contrary to public policy or otherwise illegal, by reason only that it is a contract for maintenance or champerty. |
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| (3) The consequences for failure to comply with all of the requirements mentioned in subsection (4) are set out in section 115D. |
(4) The requirements mentioned in subsections (2) and (3) are as follows:| (a) | the conditional fee agreement must be in writing and signed by the client; | | (b) | the conditional fee agreement must not provide for the remuneration or costs to be payable as a percentage or proportion of the amount of damages or other amounts awarded to or recovered by the client in any contentious proceedings; | | (c) | any other requirement prescribed under subsection (7). |
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(5) A provision in any conditional fee agreement is void and unenforceable which has or purports to have the effect that the solicitor, foreign lawyer or law practice entity —| (a) | will not be liable for negligence; or | | (b) | will be relieved from any responsibility to which the solicitor, foreign lawyer or law practice entity would otherwise be subject as a solicitor, foreign lawyer or law practice entity. |
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(6) To avoid doubt, a conditional fee agreement may provide for the whole or any part of the remuneration and costs payable in specified circumstances to include remuneration and costs incurred in relation to —| (a) | preliminary and preparatory advice and other legal services for the purposes of and before the commencement of any contemplated prescribed proceedings even if those proceedings are eventually not commenced or if the claim or dispute in those proceedings is settled; or | | (b) | negotiations or settlement of a claim or dispute for the purposes of any contemplated prescribed proceedings even if those proceedings are eventually not commenced or if the claim or dispute in those proceedings is settled. |
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(7) The Minister may make regulations necessary or convenient for carrying out or giving effect to this Part, including regulations to prescribe any of the following:| (a) | the class or classes or descriptions of contentious proceedings to which a conditional fee agreement may relate; | | (b) | requirements relating to the form of a conditional fee agreement; | | (c) | requirements relating to the terms and conditions of a conditional fee agreement; | | (d) | requirements relating to maximum limits on the remuneration or costs (including the uplift fee) that may be charged under a conditional fee agreement determined or calculated by reference to a prescribed amount, a prescribed fixed or hourly rate or a percentage of the prescribed amount or rate or any combination thereof; | | (e) | requirements relating to prescribed information that must be provided to a client before any conditional fee agreement is entered into; | | (f) | requirements relating to a party to a conditional fee agreement. |
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(8) Rules of Court may make provision with respect to —| (a) | the assessment of any remuneration or costs payable under a conditional fee agreement or in other circumstances mentioned in this Part; and | | (b) | the procedure and practice of applications made under this Part. |
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| (9) The regulations made under subsection (7) and the Rules of Court made under subsection (8) may provide for different requirements, conditions or procedures for different classes or descriptions of proceedings. |
| (10) Any addition to or deletion or other variation of any requirement mentioned in subsection (4) does not affect any agreement which was entered into before the date of commencement of that addition, deletion or variation. [Act 8 of 2022 wef 04/05/2022] |
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| Effect of conditional fee agreement |
115C.—(1) A conditional fee agreement does not affect the amount of, or any rights or remedies for the recovery of, any costs recoverable from the client by, or any costs payable to the client by, any person who is not the solicitor, foreign lawyer or law practice entity that conducted the proceedings for the client, and that person may (unless he or she has otherwise agreed) require any costs payable or recoverable by him or her to or from the client to be assessed.| (2) Despite subsection (1), the uplift fee (if any) is not recoverable from the person mentioned in that subsection. |
| (3) Despite subsection (1), the client is not entitled to recover from any other person, under any order for the payment of any costs which are the subject of the conditional fee agreement, an amount that is more than the amount payable by the client to the solicitor, foreign lawyer or law practice entity that conducted the proceedings for the client. |
| (4) It is an implied term of a conditional fee agreement that no claim may be made on a separate basis from the agreement by the solicitor, foreign lawyer or law practice entity in respect of any services, remuneration or costs in relation to the conduct and completion of the contentious proceedings in respect of which the agreement is made, except such services, remuneration or costs (if any) as are expressly provided in the agreement. |
| (5) Subject to the provisions of this Part, the costs of a solicitor, a foreign lawyer or a law practice entity, in any case where there is a conditional fee agreement, are not subject to assessment nor to the provisions of section 118. [Act 8 of 2022 wef 04/05/2022] |
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| Enforcement of conditional fee agreement |
115D.—(1) No action or suit may be brought or instituted upon any conditional fee agreement except for an application made under this Part.| (2) Every question respecting the validity or effect of a conditional fee agreement may be examined and determined, and the agreement may be enforced or set aside on an application to the court of justice in which the contentious proceedings or any part of the proceedings was conducted, or, if the proceedings were not conducted in any court of justice, then by the General Division of the High Court. |
(3) An application under subsection (2) may be made by any person or the representatives of any person who —| (a) | is a party to the conditional fee agreement; or | | (b) | is or is alleged to be liable to pay, or is or is claiming to be entitled to be paid, the remuneration or costs in respect of which the agreement was made. |
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(4) Upon an application under subsection (2), the court mentioned in that subsection may enforce a conditional fee agreement in any manner and subject to any condition as to the costs of the application that the court thinks fit, if the court finds that —| (a) | the requirements in section 115B have been complied with; and | | (b) | the conditional fee agreement is neither void nor voidable on the ground of incapacity, fraud, misrepresentation, duress, coercion, undue influence, unconscionability, mistake or any other ground for invalidating a contract, having regard to the circumstances in which the agreement was made and the interests of all the parties to the agreement taken as a whole. |
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(5) Upon an application under subsection (2), if the court mentioned in that subsection finds that the conditional fee agreement does not satisfy subsection (4)(a) or (b) —| (a) | the solicitor, foreign lawyer or law practice entity is not entitled to recover any amount in excess of the amount that would have been recoverable if the conditional fee agreement had satisfied subsection (4)(a) and (b), and must repay any excess amount received; and | | (b) | subject to the limits mentioned in paragraph (a), the remuneration and costs incurred or chargeable in respect of the contentious proceedings included in the agreement are recoverable in the same manner and according to the same rules by which those remuneration and costs are recoverable on assessment if there had not been an agreement. |
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| (6) The court mentioned in subsection (2) may also make such order as to the costs of and relating to the application and the proceedings related to the application as the court thinks fit. |
(7) Within 12 months after a payment has been made under a conditional fee agreement, the person who made the payment may make an application under this section to the court mentioned in subsection (2), and the court may, if it is satisfied that the special circumstances of the case so require —| (a) | reopen the conditional fee agreement; | | (b) | order the remuneration and costs to be assessed; and | | (c) | order the whole or any portion of the amount received by the solicitor, foreign lawyer or law practice entity to be repaid on such terms and conditions as to that court seem just. |
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| (8) Where any conditional fee agreement is entered into by the client in the capacity of trustee under a deed or will, or of guardian or donee or deputy (as defined in section 2(1) of the Mental Capacity Act 2008) of a person who lacks capacity, and the estate or the property of the beneficiary or person will be chargeable with the amount payable under the agreement or with any part of that amount, the agreement must before payment be laid before the Registrar, who may examine it and disallow any part of it, or may require the direction of the General Division of the High Court to be taken on it. |
(9) If in a case mentioned in subsection (8), the client pays the whole or any part of the amount payable under the conditional fee agreement without the previous allowance of the Registrar or the General Division of the High Court —| (a) | the client is liable at any time to account for the amount charged to the estate or property mentioned in subsection (8); and | | (b) | the solicitor, foreign lawyer or law practice entity that accepted the payment may be ordered by the court mentioned in subsection (2) to refund the amount received by the solicitor, foreign lawyer or law practice entity. [Act 8 of 2022 wef 04/05/2022] |
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| Death or incapacity of solicitor or foreign lawyer or winding up or dissolution of law practice entity after conditional fee agreement made |
115E.—(1) Where a solicitor or foreign lawyer has made a conditional fee agreement with his or her client and anything has been done by the solicitor or foreign lawyer under the agreement, and, before the agreement has been completely performed, the solicitor or foreign lawyer dies or becomes incapable to act, an application may be made under this section to the court by any party to the agreement or by the representatives of that party.| (2) Where a law practice entity has made a conditional fee agreement with its client and anything has been done by the entity or any of its partners, directors, officers or employees under the agreement, and, before the agreement has been completely performed by the entity or any of its partners, directors, officers or employees, the entity is wound up or dissolved, an application may be made under this section to the court by any party to the agreement or by the representatives of that party. |
| (3) The court has, upon the application under subsection (1) or (2), the same power to enforce or set aside the agreement, so far as it has been acted upon, as if the death, incapacity, winding up or dissolution had not occurred, and in exercising such power the court must have regard to the terms of the conditional fee agreement and in particular to any term in the agreement relating to the consequences of such death, incapacity, winding up or dissolution, as the case may be. |
| (4) The court may, even if it thinks the conditional fee agreement would have been enforceable under section 115D(4) if an application had been made under section 115D(2), order the amount due in respect of anything done under the agreement mentioned in subsection (1) or (2) to be ascertained by assessment. |
| (5) The Registrar, in ascertaining by assessment the amount mentioned in subsection (4), must have regard to the terms of the conditional fee agreement and in particular to any term in the agreement relating to the consequences of death or incapacity of the solicitor or foreign lawyer or the winding up or dissolution of the law practice entity (as the case may be) that is a party to the conditional fee agreement. |
| (6) Payment of the amount found to be due may be enforced in the same manner as if the conditional fee agreement had been completely performed by the solicitor, foreign lawyer or law practice entity, as the case may be. [Act 8 of 2022 wef 04/05/2022] |
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| Change of solicitor, foreign lawyer or law practice entity after conditional fee agreement |
115F.—(1) If, after a conditional fee agreement has been entered into, the client changes the solicitor, foreign lawyer or law practice entity acting for the client before the conclusion of the prescribed proceedings to which the agreement relates (which the client may do despite the agreement), an application may be made to the court by any party thereto or by the representatives of that party.| (2) The court has, upon the application under subsection (1), the same power to enforce or set aside the agreement, so far as it may have been acted upon, as if the change of solicitor, foreign lawyer or law practice entity had not occurred and in exercising such power the court must have regard to the terms of the conditional fee agreement and in particular to any term in the agreement relating to the consequences of a change in or the death or incapacity of the solicitor or foreign lawyer or of the winding up or dissolution of the law practice entity, as the case may be. |
| (3) The court may, even if it thinks the conditional fee agreement would have been enforceable under section 115D(4) if an application had been made under section 115D(2), order the amount due in respect of anything done to be ascertained by assessment. |
(4) The Registrar, in ascertaining by assessment the amount due in respect of the proceedings conducted or work done, must have regard to —| (a) | the circumstances under which the change mentioned in subsection (1) took place; and | | (b) | the terms of the conditional fee agreement and in particular any term in the agreement relating to the consequences of a change in or the death or incapacity of the solicitor or foreign lawyer or of the winding up or dissolution of the law practice entity, as the case may be. |
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| (5) Upon an assessment mentioned in subsection (4), the solicitor, foreign lawyer or law practice entity is not entitled to the full amount of the remuneration or costs agreed to be paid unless it appears that there has been no default, negligence, improper delay or other conduct on the part of the solicitor, foreign lawyer or law practice entity affording reasonable ground to the client for the change of solicitor, foreign lawyer or law practice entity, as the case may be. |
| (6) Payment of the amount found to be due may be enforced in the same manner as if the conditional fee agreement had been completely performed by the solicitor, foreign lawyer or law practice entity, as the case may be. [Act 8 of 2022 wef 04/05/2022] |
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