By: 10 March 2016
NHS Litigation Authority defeats Irwin Mitchell claim for additional legal costs liabilities after pre-Jackson funding switch – for the third time

The NHS Litigation Authority (NHSLA) has defeated a third claim for additional legal costs liabilities brought by Irwin Mitchell following a pre-LASPO reform switch in funding.

In Yesil v Doncaster NHS Trust, heard before Regional Costs Judge Besford, the NHSLA argued that it was unreasonable to switch funding and that the additional costs claimed should be disallowed.

Irwin Mitchell sought costs of £350,856. The additional liabilities comprised a success fee of £55,523 and an ATE premium of £50,682.

Irwin Mitchell’s case was based on the argument that the switch guaranteed funding for the claimant, however they omitted to advise that “the claimant by accepting a CFA was abandoning a substantial uplift on general damages of 10%, a not insignificant sum of circa £28,000.”

District Judge Besford commented that: “Irwin Mitchell would appear to have been not so much ‘leaning’ one way, as giving advice tailored to a decision they had already made.

“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 […] Further, the solicitors have produced no evidence either by way of file notes, copy letters or even a witness statement from the client as to the advice tendered. In my judgment, the decision to switch was not self-evident or transparent.’’

A spokesman for the NHS LA said: “It is disappointing that we continue to receive substantial bills for additional liabilities in these circumstances which means that it is necessary for us to challenge those bills at court.’’

The Law Society Gazette reported a response from Irwin Mitchell to the case. The firm say that it acted “in the best interests of a specific group of clients” in a “short timeframe” in order to ensure they were able to pursue their claims to trial fully protected from any costs liabilities under a no cost pre-LASPO CFA.

“This protected them from changes arising from LASPO and the vagaries and uncertainties of an increasingly complex and constrained legal aid system by ensuring their cases would be best placed to proceed under the new legal framework. We cannot comment on individual cases due to the ongoing appeals process,” said the firm.

The NHSLA said that it is increasingly contesting additional costs liabilities in cases where claimants secured legal aid funding prior to the LASPO reforms.