CHANGING FROM LEGAL AID TO CFA: THE COURT OF APPEAL DECISION

This blog has followed the cases that arose out of decisions to switch from public funding to legal aid. In Hyde -v- Milton Keynes NHS Foundation Trust [2017] EWCA Civ 399 the Court of Appeal has given a judgment that is in favour of the claimants.

THE ISSUES

The claimant brought a clinical negligence claim against the Trust. She initially had public funding.  She switched from public funding to a CFA. This meant that an additional liability and insurance premium were payable by the defendant. The defendant objected  and argued that the claimant could not recover. The defendant was unsuccessful before the Master and High Court Judge.

ON APPEAL

The defendant modified its argument compared to the issues raised below. On appeal it was accepted that the claimant was entitled to recover base costs, but not the additional liability or premium. The defendant’s primary argument was that the legal aid certificate was not discharged and, therefore, the court should assume that the work was still being done under the certificate.  This  technical argument was rejected by the Court of Appeal. Lord Justice Davis stated:

“49. In my opinion the costs judge and Soole J reached the right conclusion, given the circumstances of this particular case. Mr Sachdeva complained (as had counsel before him unsuccessfully complained in cases such as Littaur and Burridge) that such a conclusion would in effect neuter the statutory scheme with regard to discharge. But the general desirability of obtaining such a discharge of course remains: as the very fact that this case has ended up in the Court of Appeal illustrates.”

RELATED POSTS

• Switching from Legal aid to CFA: the Successful appeal
  • Costs, CFAs, addition liability and going outside public funding 1: Hyde -v- Milton Keynes.
  • Costs, CFAS, additional liabilities and going outside public funding 2: Surrey -v- Barnet & Chase
  • Moving from legal aid to CFAS: recent developments
  • Moving from public funding to CFA: Not a reasonable step in this case.
  • Switching from public funding to a CFA: another case
  • Moving from legal aid to CFAS: the judgments