AH v Lewisham Hospital NHS Trust [2016] EWHC B3 (Costs) (12 January 2016)

AH v Lewisham Hospital NHS Trust [2016] EWHC B3 (Costs) (12 January 2016)

The claimant's decision to change from legal aid to a CFA was not objectively reasonable because it was based on materially incomplete advice, specifically the failure to inform her of the loss of the Simmons v Castle 10% uplift on general damages. This omission was material and could have influenced the claimant's decision. Therefore, the success fees and ATE premium are not recoverable from the defendant.

Citation
[2016] EWHC B3 (Costs)
Parties
Claimant: Claimant (acting through her litigation friend); Defendant: Defendant
Jurisdiction
England and Wales
Judgment Date
12 January 2016
Procedural Posture
Detailed Assessment of Costs / Judgment on Preliminary Issue of Recoverability of Success Fees and ATE Premium
Outcome
Claims for success fees and ATE premium disallowed; not recoverable from the defendant.
Legal Topics
Conditional Fee Agreements, After the Event Insurance, Legal Aid, Success Fees, Reasonableness of Costs, Simmons V Castle Uplift
Civil Procedure Costs Law Clinical Negligence Conditional Fee Agreements After the Event Insurance Legal Aid Success Fees Reasonableness of Costs +1 more

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Parties

Claimant (acting through her litigation friend)

Claimant

Defendant

Defendant

Procedural Posture

Detailed Assessment of Costs / Judgment on Preliminary Issue of Recoverability of Success Fees and ATE Premium

Legal Issues

  1. 1 Whether the claimant's success fees and ATE insurance premium are recoverable from the defendant given the claimant's change from legal aid to a CFA without advice on the Simmons v Castle 10% uplift.
  2. 2 Whether the advice given to the claimant about funding options was adequate and its impact on the reasonableness of incurring additional liabilities.

Ratio Decidendi

The claimant's decision to change from legal aid to a CFA was not objectively reasonable because it was based on materially incomplete advice, specifically the failure to inform her of the loss of the Simmons v Castle 10% uplift on general damages. This omission was material and could have influenced the claimant's decision. Therefore, the success fees and ATE premium are not recoverable from the defendant.

Court Disposition

Claims for success fees and ATE premium disallowed; not recoverable from the defendant.

Orders

  • Success fees and ATE insurance premium claimed by the claimant are disallowed.