Kerry Underwood

SWITCHING FROM LEGAL AID TO A CONDITIONAL FEE AGREEMENT

with one comment


In Hyde v Milton Keynes NHS Foundation Trust [2017] EWCA Civ 399

 

the Court of Appeal upheld the decision of a Costs Master and High Court Judge that it was reasonable for a legally aided client in a clinical negligence matter to switch to a Conditional Fee Agreement.

Here the claimant had brought clinical negligence proceedings against the trust and was legally aided but switched to a Conditional Fee Agreement which meant that a success fee and insurance premium were payable by the defendant, as the matter dated back to the time when such additional liabilities were recoverable.

 

The defendant objected but lost in the Senior Court Costs Office and the High Office.

 

On further appeal to the Court of Appeal the defendant conceded that the claimant was entitled to recover base costs but argued that there was no right to recover the success fee or premium.

 

It was agreed that the Legal Aid Certificate had not been formally discharged, even though legal aid had run out and there was no more public funding available.

 

The defendant argued that as the Legal Aid Certificate had not been discharged the court should assume that the work was still being done under that certificate.

 

It was a highly technical argument which was rejected by the Court of Appeal.

 

There was no period of time when the claimant’s solicitors were being paid both by legal aid and under the Conditional Fee Agreement.

 

In this case liability had been agreed but as the dispute over quantum continued the Legal Services Commission declined to increase the funding.

 

The client therefore signed the Conditional Fee Agreement but did not apply for a Notice of Discharge from the commission.

 

The Court of Appeal held that there was no period of time when the solicitors could, let alone did, take payment both under the private retainer and the undischarged funding certificate.

 

Here the trust had “readily accepted that in the present case there was no intention whatsoever on the part of the solicitors (or claimant) that there would or might be such topping up”, that is using public funding as a base and taking extra money from the client.

 

The Court of Appeal rejected the defendant’s argument that while the Legal Aid Certificate was undischarged, the Conditional Fee Agreement had to be treated as unlawful and unenforceable.

 

Comment: Yet another practical and sensible decision by the Court of Appeal to seek to maintain access to justice and yet another piece of disgraceful conduct by the National Health Service Legal Aid Authority, or whatever it is now called.

 

That body is a blot on the legal landscape.

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Written by kerryunderwood

June 5, 2017 at 8:55 am

Posted in Uncategorized

One Response

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  1. NHS Disillusion?

    Peter Burdge

    June 5, 2017 at 9:03 am


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