High Court upholds CFA despite legal aid certificate remaining in place


Soole J: no question of abuse of the system

The High Court has ruled that a conditional fee agreement (CFA) was valid even though the claimant’s legal aid certificate remained in place.

Mr Justice Soole agreed with Master Rowley that the certificate had been “discharged by conduct”, and there was no need for the equivalent of a “burial certificate” from the Legal Services Commission (LSC).

Soole J said: “Whilst the correct and wise procedural course would have been to obtain a discharge of the certificate, the position was in substance the same as if the authorised funds had been completely exhausted.

“The funds were approaching exhaustion, the LSC had refused further funding and the case could only proceed if alternative funding were obtained.”

In these circumstances, Soole J said Master Rowley had “rightly held” that there was no question of an attempt to ‘top up’ a legal aid certificate nor of any other form of abuse of the system.

The court heard in Milton Keynes NHS Foundation Trust v Hyde [2016] EWHC 72 (QB) that Mrs Hyde changed solicitors twice before Ashton KCJ undertook a “risk review” of her medical negligence claim.

The law firm concluded, in March 2013, that public funding was “insufficient to complete the case” and entered into a CFA with Mrs Hyde later that month.

The claim was settled in November 2013, but the law firm “never applied for or obtained a discharge of the funding certificate”.

The NHS trust argued that that the CFA was “a private retainer running concurrently with public funding and entirely unenforceable”.

However, costs judge Master Rowley ruled in September last year that the switch from legal aid to CFA was valid and that the certificate had been discharged by conduct, enabling a “private retainer to fund the rest of the proceedings”.

Soole J said the evidence in the case demonstrated that by February/March 2013, the “funding was approaching exhaustion and the LSC had made it clear that there would be no more”.

The judge said that the law firm’s conclusion that “the only way forward was via a CFA” was “entirely reasonable and proper”.

Soole J said he accepted the NHS trust’s argument that “only the LSC can formally discharge the certificate”, and that it could not be done by the solicitor or client.

The certificate remained in existence, the judge went on, but “that was a matter of procedure” or, referring to a metaphor used by Lord Justice Ackner, a “burial certificate”.

As a “matter of substance”, and subject to the notice given to the other side, the legal aid funding had come to an end.

Soole J said there was “no concurrency” of public and private funding, apart from the one-day interval between the CFA being signed and the notice of a change in funding arrangements, an interval which he disregarded as de minimis.

Mr Justice Soole, sitting with Master O’Hare as assessor, rejected the trust’s appeal.

Earlier this month the High Court ruled against Irwin Mitchell and Slater and Gordon in two cases involving medical negligence claimants who switched from legal aid to a CFA shortly before LASPO, but in Hyde the proximity of the introduction of the Act was found not to be a factor.


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