A new attitude towards naming the Defendant on CFAs?

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Posted on: June 20th, 2018 by Elena Kostova

In the recent case Drew Malone V Birmingham Community NHS Trust [2018] EWCA Civ 1376 the Court of Appeal considered the proper construction of a CFA and specifically whether it was limited to proceedings brought against the only potential Defendant named in the CFA itself.

By way of background the appellant claimant was a prisoner at HMP Birmingham. He claimed that whilst in prison there was a negligent failure between August 2010 and January 2011 to diagnose that he had testicular cancer. At that time the prison was operated by the Ministry of Justice but health care services were provided by two NHS trusts, Birmingham Community NHS Trust (the Defendant) and Birmingham and Solihull Mental Health Foundation Trust.

There was initial uncertainty regarding party responsible and the Claimant solicitor corresponded with both the prison and prison medical authorities. Proceedings were issued against all three potential Defendants.

After conclusion of the matter dispute arose regarding the CFA and costs liability under the same. The CFA contained the following wording:

All work conducted on your behalf following your instructions provided on [sic] regarding your claim against Home Office for damages for personal injury suffered in 2010.

On detailed assessment the Defendant asserted that no costs were payable to the Claimant because the only potential Defendant named in the CFA was the Home Office and the CFA was accordingly limited to a claim against the Home Office/Ministry of Justice. In a judgment dated 27 April 2015 DJ Phillips, the regional costs judge for Wales, held that as a matter of construction the CFA excluded a claim against the Defendant.

On appeal the Court noted the critical wording consisted of only one sentence and yet contained three manifest mistakes: (i) the omission of the date of the instructions and (ii) the omission of the definite article before “Home Office” and (iii) the description of the claim as being against “Home Office”. It was further noted the Home Office had not been responsible for operating prisons for some years.

The Claimant argued that the reference to Home Office was made to simply identify the instructions which had been received.

The Court focused on the specific wording and considered the reference to “”Home Office” was descriptive of the instructions received rather than of the work to be done. It was construed that the reference related to past instructions rather than future work.

Further, whilst noting that no great care had been taken in relation to the drafting of the critical wording, the same was seen to support the construction of the wording to be descriptive.

The appeal was allowed on the basis that both textual and contextual considerations led to the conclusion that the CFA is properly to be construed as not being limited to a claim against the Home Office/Ministry of Justice.

What that means for Law v Liverpool City Council [2005] EWHC 90020 and future CFA interpretations?

The previous case law authority was considered but distinguished on four grounds: (i) the wording used was more specific and restrictive – “Your claim against Liverpool City Council…”; (ii) there was no apparent careless drafting; (iii) the Council was an appropriate defendant; (iv) the Council remained a defendant up to and including settlement.

Interestingly, the Court further noted the argument that the wording used was meant to be merely descriptive rather than prescriptive does not appear to have been raised. The case based on its facts therefore remains good authority.

At first glance, the decision could raise concerns whether the rules have been relaxed a little too much from the previously rigid position. I am however of the view the decision was very much based on the specific circumstances supporting the wider interpretation and not intended to be taking the pressure of Claimant solicitors when entering into funding arrangements.

It is prudent to note that central to the Court’s interpretation was the Claimant Solicitor’s carelessness when drafting the CFA. Whilst I anticipate some Claimant solicitors will attempt to benefit from the decision, I do not think there will be much rush to demonstrate lack of consideration on the solicitor’s part to attract the same result.

Nevertheless, with two authorities taking on different approaches, I suspect there will be a few battles of interpretation to follow

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