The Supreme Court has refused to entertain an appeal against the decision in XDE V NORTH MIDDLESEX UNIVERSITY HOSPITAL NHS TRUST (2020) EWCA Civ 543. The claimant was switched from legal aid to a conditional fee agreement in the run up to the implementation of the Jackson reforms.
On the face of it, this would enable those acting for the claimant to secure not only base costs but also an uplift of 100% and the cost of after the event insurance.
On settlement of this substantial claim the defendant asserted that these additional liabilities were unreasonably incurred and ought to be disallowed. The Courts agreed.
Coulson LJ noted that evidence as to the rationale of the switch was conspicuously absent. Indeed, the decision to effect the change was that of the Solicitor. It was imposed upon the client.
It remains open for a claimant who did move onto a CFA to recover additional liabilities but there is a heavy burden, demanding explicit material, to convince the court that it was done in the best interests of the client.
This blog was written by Professor Dominic Regan who is working with the Costs and Litigation Funding team as a consultant.