(a) the solicitor and client jointly apply to a judge of the Superior Court
of Justice for approval to include the costs or a proportion of the
costs in the contingency fee agreement because of exceptional
(b) the judge is satisfied that exceptional circumstances apply and
approves the inclusion of the costs or a proportion of them.2
 Section 28.1(8) does two things. The first part of the section prohibits a term in a contingency fee agreement that provides for payment to the lawyer of all or part of an amount paid
to the client for legal fees, in addition to any other amount owed
under the contingency fee agreement. In other words, a lawyer
cannot take a percentage of the amount paid to the clients for
damages and a percentage of the amount paid for legal fees.
 The prohibition in the first part of s. 28.1(8) is, however,
qualified by the exception set out in the rest of the section. That
exception applies if the two criteria set down in subsections (a)
and (b) are met. Subsection (a) requires that the solicitor and
client bring a joint application before the court seeking approval
of the term providing for payment of all or a portion of the costs
paid to the client. Subsection (b) requires that the court be satisfied that “exceptional circumstances” exist justifying the inclusion of the provision requiring payment of all or part of the costs
awarded to the client to his lawyer as part of the contingency fee
agreement. The payment contemplated by s. 28.1(8) is referred
to in some of the cases as a “premium”. A contingency fee
agreement that requires approval under s. 28.1(8) is not
enforceable unless approved by the court: s. 28.1(9).
 The appellants raise four issues on appeal:
— Was Stockwoods permitted to proceed by way of motion in
the action in seeking approval of the contingency fee agree-
ment, or was it required to commence a new proceeding by
way of application?
— What is the correct interpretation of para. 16 and is it
enforceable against the appellants?
2 Section 28.1(8) is to be repealed on a date to be proclaimed: Plan for
Care and Opportunity Act (Budget Measures), 2018, S.O. 2018, c. 8, Sch. 31, s. 3(1).