Costs: Claimant Penalised For Change From Legal Aid Funding to CFA

• Published date: 21 May 2020
• Author: Mr Jonathan Shaw
• Subject Matter: Insurance, Litigation, Mediation & Arbitration, Insurance Laws and Products, Trials & Appeals & Compensation
• Law Firm: Clyde & Co

The Court of Appeal has rejected an appeal from a Claimant seeking to recover a success fee and ATE premium in a clinical negligence case. The Claimant's solicitors had been switched from legal aid funding to a conditional fee agreement (CFA), yet there had been no involvement of the Claimant's litigation friend in making that decision.

This decision was found to be unreasonable by the Court of Appeal, effectively denying the Claimant recovery of a success fee and the after-the-event insurance premium (ATE). The change had not been made because of any tangible benefit to the Claimant, rather that the solicitor had exceeded the legal aid budget, and would be unable to secure an increase.

Background

The Claimant pursued a clinical negligence claim, and first instructed a firm of solicitors in May 2002. In February 2006, the Claimant instructed her second firm of solicitors. Although the claim was initially commenced on a private funded basis, then a CFA with second firm of solicitors, as the firm had a legal aid franchise there was an expectation that the Claimant would apply for legal aid, which was subsequently applied for and a legal aid certificate provided

The Claimant's solicitor made a request for further funding when medical reports were being...