What is a Non-contentious Business Agreement and when does it apply?

[snowman]

I understand the difference between contentious work and non-contentious work.

However, I have recently come across something called a "non-contentious business agreement"(NCBA). This appears to by a type of solicitor's retainer and has rules in the Solicitor's Act 1974.

Whilst an NCBA is one type of retainer with a specific set of rules, there are also other types of retainer with different rules. For example there is a standard type of retainer such as would be likely if you simply went to a solicitor for advice and paid per hour.

My question is, when does a retainer become classed as an NCBA? How do I know if the retainer with my solicitor is a NCBA with special rules, or just a standard retainer?

For example, if I instruct a solicitor for conveyancing, are all conveyancing retainers NCBA? Or are some and some not? How can I tell if a particular retainer is an NCBA?

[R0b]

Have you checked the SA 1974, if I recall there are definitions on contentious and non-contentious business.

Specifically section 87.

A conveyancing transaction would be non-contentious until a dispute arises at which point it may become contentious. Law firms tend to split out departments between contentious (dispute resolution team / Property Litigation) and non-contentious (Property, Commercial etc.)

[snowman]

Thanks for your reply. I have read about NCBAs turning into CBAs if a dispute arises but that is not what i'm trying to understand.

Reading SA s.57 it seems that any written agreement (for NC work) being charged by one of the means of charging stated in the Act and signed by the client is an NCBA and the rules of the Solicitors Act apply to that agreement.

But also, I read elsewhere that some retainers for non-contentious work might not be classed as an NCBA under the Solicitors Act 1974. These might be called 'simple' retainers and are covered by the The Solicitors’ (Non-Contentious Business) Remuneration Order 2009 but not the SA.

So how do I tell the difference?

If a solicitor offers to do some conveyancing (with no disputes) and sends a client care letter giving an estimate of the gross sum payable and I sign that letter in agreement, will it automatically be classed as an NCBA under the SA 1974?

I would have thought that all retainers for conveyancing would be in writing, so how might a retainer not be an NCBA but instead be a simple retainer not within the definitions of the SA 1974?

Before I can establish whether the rules of NCBAs have been complied with, I need to know how to determine if the retainer is an NCBA to start with.

I hope this is as simple as all conveyancing retainers are NCBAs if in writing but I am not sure.

[R0b]

I'm not an expert on this area so I cant say with 100% but section 56 of the SA 1974 says that an order may be made as to solicitors remuneration and any principles for non-contentious business. The 2009 Order confirms in the introduction section that it is being made subject to section 56 of SA 1974.

As far as I read the 2009 Order, it simply sets out the principles of solicitors relating to their costs and obtaining security for their costs. It doesnt suggest to me that it is entirely separate or in your words a 'simple retainer'.

Under Article 1 of the 2009 Order it clarifies that it applies to all non-contentious business, so I think that answers your question. The explanatory note of the 2009 Order also confirms this.