“Poorly drafted” CFA that named wrong defendant still valid, Court of Appeal rules


CFA: Little attention to detail in drafting

A conditional fee agreement (CFA) that named the wrong defendant was still valid when read in the wider context of the claim, the Court of Appeal has ruled.

It found this was actually supported by the slopping drafting of the agreement.

The claimant in Malone v Birmingham Community NHS Trust [2018] EWCA Civ 1376 was a prisoner who claimed there had been a negligent failure to diagnose that he had testicular cancer.

The CFA he signed with NewLaw Solicitors said it covered “all work conducted on your behalf following your instructions provided on [sic] regarding your claim against Home Office for damages for personal injury suffered in 2010”.

His solicitors had trouble identifying the right defendant – the prison was operated by the Ministry of Justice but health care services were provided by two NHS trusts.

Proceedings were issued naming all three, but eventually the Birmingham Community NHS Trust acknowledged that it was responsible for the claimant’s treatment. The claim settled for £10,000 plus costs.

District Judge Phillips, the regional costs judge for Wales, held that as a matter of construction the CFA excluded a claim against the defendant and so no costs were recoverable, a decision upheld by His Honour Judge Curran QC.

The question was whether the wording limited the scope of the CFA to a claim against the Home Office/Ministry of Justice – the defendant accepted the reference was to the government authority responsible for the prison.

Noting the “poor-quality drafting and little attention to detail” in the CFA, Lord Justice Hamblen said last year’s Supreme Court decision in Wood v Capita Insurance Services meant that its interpretation was “likely to call for more emphasis on the factual matrix and contextual considerations and less principal emphasis on close textual analysis”.

Hamblen LJ continued: “As a matter of language, in my judgment the most natural reading of the critical wording is that the CFA covers ‘all work conducted’ on the claimant’s behalf which follows from the ‘instructions provided’ in respect of his claim ‘against Home Office’.

“In other words… the reference to ‘Home Office’ is descriptive of the instructions received rather than of the work to be done. It relates to past instructions rather than future work.”

He said this construction was supported by the “contractual context”. The lack of care taken in the drafting was “consistent with the wording being descriptive rather than prescriptive”.

Further, given the uncertainty at the time the CFA was signed as to who the defendant was, “it is intrinsically unlikely that a reference to a named opponent in the description of the claim would be intended to limit the CFA to proceedings against that opponent, rather than simply to serve to describe the claim”.

Hamblen LJ concluded: “In my judgment, both textual and contextual considerations lead to the conclusion that the CFA is properly to be construed as not being limited to a claim against the Home Office/Ministry of Justice.”




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