Switch to Pre LASPO CFA following discharge of funding certificate deemed unreasonable

XDE v North Middlesex University Hospital Trust [2019] EWHC 1482 (QB)

Applying the principles laid down in Surrey v Barnet And Chase Farm Hospitals NHS Trust [2018] EWCA Civ 451 Mr Justice Jay dismissed this appeal against a Costs Judge’s disallowance of additional liabilities including a success fee of over £300,000 following a switch from legal aid funding to a conditional fee agreement in 2012.

Unlike in Surrey where failure to advise the client of the giving up of a Simmons and Castle uplift played a central role, the basis of the decision in this case lay with the solicitors’ “half-hearted attempt to increase the certificate limit” and failure to submit a formal application (APP8) to increase before requesting that the certificate be discharged.

It was held that the solicitors had made no “obvious effort” to keep within the original funding agreement and were themselves culpable for the state of affairs which had resulted. Furthermore, the decision to discharge the certificate had been taken “without any discussion as to the appropriateness of the change” with the Litigation Friend.

“[w]hat can only be described as a half-hearted attempt to increase the certificate limit for a further short period [i.e. by letter dated 13th December 2011] was made as a prelude to inviting the LSC to discharge the certificate…. it was incumbent on the solicitors to ensure that the case was run within the contractual costs limits: there was no evidence before the court to show how this case was ever expected to be funded within those limits.”