AB v Mid Cheshire Hospitals NHS Foundation Trust [2019] EWHC 1889 (QB) (16 July 2019)

AB v Mid Cheshire Hospitals NHS Foundation Trust [2019] EWHC 1889 (QB) (16 July 2019)

The Regional Costs Judge was entitled to find that the switch from legal aid to a pre-LASPO CFA was reasonable in the specific circumstances of this case, due to the critical dispute between experts on causation and the need to instruct further experts at rates not available under legal aid. The failure to advise on the Simmons v Castle uplift or increased exposure to solicitors' costs did not render the decision unreasonable, as these factors would not have changed the litigation friend's decision and the uplift was not secure given the uncertain prospects of success.

Citation
[2019] EWHC 1889 (QB)
Parties
Claimant and Respondent: AB (a protected party by his mother and litigation friend YZ); Defendant and Appellant: Mid Cheshire Hospitals NHS Foundation Trust
Jurisdiction
England and Wales
Judgment Date
16 July 2019
Procedural Posture
Appeal / High Court (queen's Bench Division) Appeal From Regional Costs Judge
Outcome
Appeal dismissed
Legal Topics
Recoverability of Additional Liabilities, Conditional Fee Agreements (cfa), Legal Aid, Expert Evidence Funding, Success Fees, ATE Insurance Premiums
Civil Procedure Costs Medical Negligence Recoverability of Additional Liabilities Conditional Fee Agreements (cfa) Legal Aid Expert Evidence Funding Success Fees +1 more

Case Brief

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Parties

AB (a protected party by his mother and litigation friend YZ)

Claimant and Respondent

Mid Cheshire Hospitals NHS Foundation Trust

Defendant and Appellant

Procedural Posture

Appeal / High Court (queen's Bench Division) Appeal From Regional Costs Judge

Legal Issues

  1. 1 Whether the additional liabilities (success fee and insurance premium) were reasonably incurred and recoverable by the claimant after switching from legal aid to a pre-LASPO CFA
  2. 2 Whether the failure to advise on the Simmons v Castle uplift or on increased exposure to unrecovered solicitors' costs rendered the funding switch unreasonable

Ratio Decidendi

The Regional Costs Judge was entitled to find that the switch from legal aid to a pre-LASPO CFA was reasonable in the specific circumstances of this case, due to the critical dispute between experts on causation and the need to instruct further experts at rates not available under legal aid. The failure to advise on the Simmons v Castle uplift or increased exposure to solicitors' costs did not render the decision unreasonable, as these factors would not have changed the litigation friend's decision and the uplift was not secure given the uncertain prospects of success.

Court Disposition

Appeal dismissed

Orders

  • AB awarded costs of the appeal, summarily assessed at £10,000 for solicitors' costs plus £9,280 and VAT where applicable
  • Issue of the success fee quantum referred to the Regional Costs Judge for assessment