Malone v Birmingham Community NHS Trust [2018] EWCA Civ 1376



Judge: Patten LJ and Hamblen LJ

Citation: [2018] EWCA Civ 1376

Summary:

In circumstances where it had been entered into pre-issue, when the identity of the defendants was unclear, the fact that a CFA referred to the wrong defendant did not prevent the claimant from being liable for the costs of work done against the correct defendant.

Longer text:

A prisoner with a medical condition brought a claim for personal injuries arising out of negligent failure to diagnose his condition.  He entered into a CFA with his solicitors prior to the 1st April 2013.  Proceedings were issued against the Ministry of Defence, the Community NHS Trust and a mental health foundation.  There was some uncertainty as to which body was responsible for the prisoner’s healthcare.  The CFA was in the Law Society standard form and was expressed to cover “all work conducted on your behalf following your instructions… regarding your claim against Home Office for damages for personal injury…”.  The Community NHS Trust ultimately accepted liability and the claim was settled.  On assessment, the Costs Judge held that no costs were recoverable by the prisoner, as the CFA was limited to a claim against the Home Office and did not cover a claim against the Trust.  That decision was upheld at County Court level.

On appeal to the Court of Appeal, it was held that the wording of the CFA did not limit its scope to a claim against the Home Office.  The drafting of the CFA was criticised as containing mistakes and because the Home Office had long since ceased to have responsibility for operating prisons, the reference to the Home Office was descriptive of the instructions received, not of the work done.  The CFA had been entered into before the proceedings were commenced, when the identity of the correct Defendant was still unclear.

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