Appeal court backs CFA without legal aid ‘burial certificate’
A law firm that signed a conditional fee agreement with its legally aided client without first obtaining a discharge certificate from the former Legal Services Commission acted reasonably, the Court of Appeal has found.
In Milton Keynes NHS Foundation Trust v Hyde  EWHC 72 (QB), Mr Justice Soole upheld the earlier view of costs judge Master Rowley that the CFA, entered into because legal aid was about to run out in the claimant’s clinical negligence case, was enforceable.
The NHS trust had attempted to argue that the funding agreement was invalid because the lack of a discharge certificate meant legal aid and a private funding arrangement were running concurrently.
But Mr Justice Soole said the conclusion drawn by the firm, Ashon KCJ, that it needed to offer a CFA in order for the case to continue was ‘entirely reasonable and proper’.
The judge accepted that only the LSC (now the Legal Aid Agency) could formally provide a ‘burial certificate’ for the discharge of legal aid funding. But he said this was only a matter of ‘procedure’.
He added: ‘As a matter of substance… the funding had come to an end and Ashton was entitled to enter a private retainer.’