115E. Death or incapacity of solicitor or foreign lawyer or winding up or dissolution of law practice entity after conditional fee agreement made

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.

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.

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.

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.

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.

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.