Winros: CFA Termination and Unjust Enrichment [2026]

Funding & CFAs — 2026-05-22

In The Winros Partnership v Global Energy Horizons Corporation [2026] EWCA Civ 654, the Court of Appeal held that solicitors could not use unjust enrichment to recreate a fee entitlement after choosing common law termination instead of the express CFA termination clause. The bills remained assessed at nil.

Overview

Date: 22 May 2026

Judges: Lewison LJ, Asplin LJ and Stuart-Smith LJ

Court: Court of Appeal, Civil Division

Citation: [2026] EWCA Civ 654

Nature of Proceedings: Second appeals arising from a Solicitors Act 1974 assessment of three bills rendered under conditional fee agreements

Key Issues:

Whether a new defence to liability raised after an earlier preliminary issues hearing was an abuse of process
Whether solicitors who terminated a CFA for repudiatory breach could recover the value of their work by unjust enrichment
The effect of an express CFA term governing termination for the client's failure to meet its responsibilities
Whether choosing a common law damages claim left room for an alternative quantum meruit claim

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The Facts

The Winros Partnership v Global Energy Horizons Corporation, reported as [2026] EWCA Civ 654, concerns a long-running dispute over solicitors' fees under three conditional fee agreements. Its central lesson is direct. A solicitor who has negotiated an express right to terminate and recover fees cannot choose a different termination route and then use unjust enrichment to recreate the payment entitlement which the contract would have provided.

The Winros Partnership, formerly Rosenblatt Solicitors, was retained by Global Energy in 2009 for proceedings against Robert Gray. The parties entered into three successive CFAs. The last, CFA-3, was dated 6 March 2013.

Rosenblatt terminated CFA-3 on 24 February 2016, alleging that Global Energy had repudiated the agreement. It claimed immediate payment of base fees, a success fee if the underlying litigation succeeded and damages for lost fees. Global Energy then commenced proceedings under section 70 of the Solicitors Act 1974 for detailed assessment of three bills.

The dispute passed through several hearings. Master James initially held that the CFAs were unenforceable and that Rosenblatt had wrongfully terminated them. On appeal, Trower J held that the agreements were not unenforceable and that Rosenblatt had been entitled to treat Global Energy's conduct as a repudiatory breach.

After the matter returned to the Senior Courts Costs Office, Global Energy raised a further defence known as Objection 1. It argued that, even though termination had been lawful, no liability for the fees arose because Rosenblatt had terminated before the contractual conditions for payment were met.

Senior Costs Judge Gordon-Saker refused to strike out that defence and assessed the three bills at nil. Marcus Smith J dismissed Rosenblatt's appeals on both abuse of process and the substantive entitlement to fees. The Court of Appeal then considered a second appeal on the abuse question and an appeal on the merits.

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The CFA Structure

CFA-3 was an entire contract and contained a detailed allocation of risk.

If Global Energy won its claim, clause 5.1 entitled Rosenblatt to its normal fees, disbursements and a success fee fixed at 100 per cent of normal fees. If Global Energy lost, Rosenblatt retained an advance fee of £300,000 and Global Energy remained responsible for outstanding disbursements, but no success fee became payable.

Clause 14 contained four separate termination regimes. Of particular importance, clause 14.3 allowed Rosenblatt to terminate if Global Energy failed to meet its responsibilities. In that event, Global Energy had to pay the fees for work done up to termination and the disbursements.

The clause therefore addressed the precise situation which had occurred. Rosenblatt could have relied on it in February 2016. Instead, it accepted Global Energy's repudiatory breach at common law and pursued damages. The parties agreed that this brought CFA-3 to an end and meant that Rosenblatt could no longer exercise its contractual right under clause 14.3.

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Key Holdings

1. Raising Objection 1 was not an abuse of process

The Court of Appeal refused permission for the second appeal concerning abuse of process.

The original case management order had identified two preliminary issues: whether the CFAs were valid and whether Rosenblatt had been entitled to terminate. It had not directed that every possible issue concerning liability must be decided at that hearing.

Objection 1 arose naturally after Trower J held that the termination was lawful. It raised a different question: what payment consequences followed from the route Rosenblatt had chosen? That question had not previously been decided.

The court emphasised that abuse of process requires a broad, merits-based judgment. Although parties should usually advance reasonably available points at the first opportunity, there is no automatic rule that every point which could have been raised earlier is barred. Here, there had been no agreement or order requiring all liability issues to be heard in 2016.

The Court of Appeal disagreed with parts of Marcus Smith J's reasoning, particularly his criticism of the earlier case management. It nevertheless held that Rosenblatt's proposed appeal had no real prospect of success. The demanding test for a second appeal under CPR 52.7 was not met.

2. Repudiatory breach does not automatically create a restitutionary claim

Rosenblatt argued that Global Energy's breach had deprived it of the opportunity to complete the entire contract and earn its fees. It said that the basis on which it had supplied its services had therefore failed, entitling it to a restitutionary quantum meruit.

The Court of Appeal rejected any bright line distinction under which unjust enrichment becomes available merely because a contract has ended following repudiatory breach. Termination operates prospectively. Accrued contractual rights remain, future primary obligations are discharged and damages replace the unperformed obligations where appropriate.

A restitutionary claim may be more likely after repudiation, but its existence still depends on the particular agreement and the basis on which the services were supplied. The court must first identify that basis objectively from the nature, structure and terms of the contract.

3. Clause 14.3 governed the event which occurred

CFA-3 was not silent about what would happen if the client failed to meet its responsibilities. Clause 14.3 expressly gave Rosenblatt a termination right and stated the resulting payment obligation.

Asplin LJ described the agreement as a “sophisticated and highly calibrated conditional fee agreement”. The payment terms, advance fee, success fee and termination provisions allocated the relevant risks in detail.

Rosenblatt's proposed implied basis was inconsistent with that allocation. It could not establish that it had supplied services on an implied condition that it would not be prevented from completing the retainer when the express agreement had already dealt with that event.

The court followed the principle that unjust enrichment must not redistribute benefits and losses which the parties have allocated by contract. Where the contract expressly governs the circumstances, there is no proper scope to imply a different basis for the parties' relationship.

4. A strategic choice did not create a failure of basis

Rosenblatt had two relevant routes. It could terminate under clause 14.3 and obtain the fees and disbursements specified there, or accept the repudiatory breach and seek common law damages. It chose the latter.

That decision did not erase clause 14.3 or create a gap for unjust enrichment to fill. The clause remained part of the contractual basis on which the work had been done. The fact that Rosenblatt had chosen not to use it did not establish a failure of basis.

Stuart-Smith LJ put the point shortly. There was no contractual silence and no basis for saying that the basis of the contract had failed merely because Rosenblatt made a strategic and tactical choice to terminate at common law.

The merits appeal was dismissed. The bills remained assessed at nil for the purposes of the section 70 proceedings. The judgment did not decide the stayed damages claim.

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Practical Implications

For Solicitors and Costs Lawyers

1. Read the termination machinery before sending the notice. The legal route selected can determine whether accrued fees become payable. A notice framed as acceptance of repudiation may have consequences different from termination under an express CFA clause.

2. Do not assume lawful termination means the bill is payable. Entitlement to terminate and entitlement to remuneration are separate questions. The relevant bill must be supported by a payment right which accrued under the agreement.

3. Map every proposed remedy against the CFA. Before termination, compare contractual fees, success fees, disbursements, damages and any proposed quantum meruit. Identify which rights survive each route and which are lost by election.

4. Treat detailed termination provisions as a risk allocation. Unjust enrichment is not a general fairness remedy. It will not usually supply an alternative payment right where the parties have expressly agreed what happens in the event concerned.

5. Establish the bill's enforceability at the delivery date. A Solicitors Act assessment determines the sum payable under the bill. If no contractual liability had accrued when it was delivered, assessment at nil may follow even though another claim in damages exists elsewhere.

For Clients and Litigation Practitioners

1. Distinguish validity, termination and payment. A CFA may be valid and its termination lawful while the particular bills remain unpaid because the conditions for payment were not satisfied.

2. A later liability defence is not automatically abusive. The court will examine the earlier order, the issues actually decided and how the defence arose. The mere fact that a point might have been advanced earlier is not conclusive.

3. Preserve the sequence of decisions. This case turned on the interaction between the original preliminary issues, the first appeal and the later points of dispute. Accurate procedural records are essential in any strike-out application based on abuse of process.

4. Keep damages and assessment proceedings conceptually separate. The Court of Appeal decided whether the bills could stand and whether unjust enrichment assisted Rosenblatt. It did not determine the separate stayed damages action.

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Conclusion

Winros v Global Energy confirms that the wording of a CFA governs both the risks assumed and the consequences of ending the retainer. Rosenblatt had an express clause which allowed it to terminate for the client's non-performance and recover fees to that date. It chose instead to accept repudiation and pursue damages.

The Court of Appeal held that unjust enrichment could not be used to reverse the consequences of that choice. Clause 14.3 addressed the precise event, so there was no silence, no alternative implied basis and no failure of basis. The merits appeal was dismissed and the bills remained assessed at nil.

For practitioners, the decision makes the pre-termination analysis critical. Before a CFA is ended, the notice, the contractual clause and the intended remedy must be considered together. A lawful exit from the retainer does not by itself create a right to bill.

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Citation: The Winros Partnership (formerly Rosenblatt Solicitors) v Global Energy Horizons Corporation [2026] EWCA Civ 654

Full judgment available at: The National Archives

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