Changing from legal aid to a CFA: defendants’ appeal allowed: additional liabilities not recoverable
19/03/18This is a great result for the NHS.
The Court of Appeal considered three cases where a claimant had changed funding to a CFA from legal aid shortly before new rules came into force in April 2013.
The new rules (LASPO) meant that claimants were no longer able to recover additional liabilities (with some exceptions) from defendants. Changing to a CFA before these rules came into force meant that solicitors would be able to recover these additional liabilities from the defendant but potentially to the detriment of the claimant.
In three separate cases the costs judges agreed, ruling that solicitors had failed to provide material advice to their clients or that the advice was flawed in a material way.
The Court of Appeal held that DJ Besford was correct in the original case in saying: “Where one of two or more options available to a client is more financially beneficial to the solicitor, the need for transparency becomes ever greater.”
This a reflection of the fundamental principle of equity that where a person stands in a fiduciary relationship to another, the fiduciary is not permitted to retain a profit derived from that fiduciary relationship without the fully informed consent of the other.”