Where family had funded a claimant’s litigation, there was a reasonable prospect of success in obtaining a third party costs order where the family were directly concerned with the facts of the claim, had taken an active role and gained a benefit from the litigation, and had sought to control its course.
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During any time when a litigant acted in person they were not a legally assisted party within the meaning of the Legal Aid Act 1988 s.17. That extended to any period after their solicitors had ceased to act for them and had communicated that to the opponent’s solicitors, even if a period of time then elapsed before they took any active steps as a litigant in person.
Where a party was entitled to its costs, it had to include all of its costs on the bill for detailed assessment. If that party was entitled to recover the cost of instructing more than one solicitor, it had to include the costs of each solicitor separately in the bill and, if it failed so to do, could not claim a separate assessment in respect of the costs of the solicitor omitted.
On the facts, the Judge had been entitled to apportion costs in line with the Claimant’s liability in a road traffic accident as he had had proper regard not only to the Claimant’s claim, but also the Defendant’s notional cross-claim; the exercise of his discretion could not therefore be criticised.
A retrospective success fee in a retrospective conditional fee agreement was not contrary to public policy.
This is an important decision concerning the recoverability of costs incurred during an inquest in later civil proceedings. It affects clinical negligence, personal injury and HRA practitioners alike. TMC were instructed by Hodge Jones & Allen in the case of Roach and attended before Master Hurst on the assessment of costs. Andrew Post of Hailsham Chambers represented them on the Claimants’ successful appeal to the High Court.