Kerry Underwood

SWITCH FROM LEGAL AID TO CONDITIONAL FEE AGREEMENT UNREASONABLE EVEN WHERE SIMMONS v CASTLE UPLIFT NOT IN PLAY

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The matters dealt with in this piece are examined in great detail in my three volume, 1,300 page book Personal Injury Small Claims, Portals and Fixed Costs – price £50 and available from Underwoods Solicitors here.

Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

In

XDE v North Middlesex University Hospital Trust [2019] EWHC 1482 (QB) (12 June 2019)

the Queen’s Bench Division held that it was unreasonable for a claimant in a clinical negligence case to switch funding from legal aid to a Conditional Fee Agreement, even where the Simmons v Castle uplift was not in play, and upheld the Master’s decision to disallow recovery of the success fee and after the insurance premium.

Here the legal aid certificate had a costs limit of £55,480 at the prescribed legal aid hourly rates of £70 for a solicitor, £50 for junior counsel and £90 for senior counsel.

The claimant’s solicitors applied for an increase of the total, but that was refused unless and until the solicitors prepared a report dealing with various matters raised by the Legal Services Commission.

The claimants had the legal aid certificate discharged and switched to a Conditional Fee Agreement.

This case differed from ones such as

Surrey v Barnet and Chase Farm Hospitals Trust and others [2018] 1 WLR 5831

in that the Conditional Fee Agreement was entered into in October 2012, that is before the 10% damages uplift was announced in the case of Simmons v Castle, so the loss of that uplift caused by entering into a pre – 1 April 2013 Conditional Fee Agreement, could not be a factor, as it was in Surrey and other cases.

Nevertheless, the switch was held to be unreasonable.

By accepting a legal aid contract the claimant’s solicitors were bound by the rules of the Legal Services Commission and those rules included keeping the case within the legal aid budget and failure to do so did not justify a switch to a Conditional Fee Agreement.

The solicitors also failed to make a properly constituted application in time for an increase in the budget.

Written by kerryunderwood

June 28, 2019 at 8:32 am

Posted in Uncategorized

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