NHSLA lines up more challenges to CFA switches

Challenges to decisions by solicitors to switch clinical negligence claimants from legal aid to conditional fee agreements (CFAs) ahead of the Jackson reforms are now firmly in the spotlight after yet another court ruling went against Irwin Mitchell.

There have now been three cases where the court ruled that the firm failed to give sufficient advice on the implications of switching and losing the 10% uplift in general damages, meaning recovery of additional liabilities was refused.

The NHS Litigation Authority (NHSLA) said it has now saved £500,000 in additional liabilities claimed in the three cases involving Irwin Mitchell and in another with Slater & Gordon.

A spokesman told the Law Society Gazette that the cases were slowly coming through the system. “It is only when the legal costs are presented at the claim’s conclusion that the total scale of additional liabilities charged becomes clear,” he said. “There are hundreds of claims potentially affected by these four test cases and, where appropriate, the NHSLA will seek to have inappropriate legal costs struck out by the courts in similar claims.”

We reported on the first case, Surrey v Barnet and Chase Farm Hospital NHS Trust [2015] EWHC B16 (Costs), which was handed down by Master Rowley last year. There has since been AH v Lewisham Hospital NHS Trust, heard by Deputy Master Campbell, and District Judge Besford’s ruling in Yesil v Doncaster & Bassetlaw Hospitals NHS Foundation Trust.

A spokesman for Irwin Mitchell said: “We are disappointed with the court’s ruling and will be appealing. We can’t comment on the individual cases, but we believe strongly that the fact the NHSLA has already settled a substantial number of cases with us supports our view that it was wholly proper and appropriate for funding to be switched in appropriate cases and that they are responsible for the additional liabilities incurred as a consequence.

“Our clients’ interests always come first and always will. It is easy with hindsight to try and apply a different perspective but the reality is that, in a short time frame, we acted in the best interests of a specific group of clients in the face of what we perceived to be an unprecedented attack by the government on access to justice and legal aid funding in clinical negligence cases…

“We still firmly believe it was the right advice at the time. The value of this to our clients in ensuring they are able to successfully pursue their claims cannot be underestimated. We would not have advised any of our clients to switch unless we considered that the overall gains substantially outweighed any losses.”

However, the High Court recently backed another decision by Master Rowley last year where the claimant switched to a CFA after the then Legal Services Commission refused to increase the funding limitation on her certificate while negotiations were ongoing. Though it was in the run-up to the Jackson reforms, the decision was not connected to them.

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Costs News
Published date
22 Aug 2016

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