Appeal court backs CFA without legal aid ‘burial certificate’

Topics: Costs, fees and funding,Legal aid and access to justice

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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 [2016] 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.’

Readers' comments (4)

  • Sensible... what if the LAA did not provide a discharge for 1 year etc. The Trust should have seen that and not wasted tax payers money on satellite litigation.

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  • There is a fairly obvious reason that a solicitor should not have two retainers in place at one time. Particularly where one retainer (legally aided) says the solicitors gets paid by legal aid even if they lose and the other retainer says they only get paid if they win. This was a long standing legal principle. I think the trust were right to run it.

    No costs would have been harsh but nonetheless correct under a strict interpretation of the law. The Claimant got lucky the judge let formalities slide.

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  • Fairly fact specific case.

    In the same week two cases were reported where the additional liabilities after a switch from legal aid to a pre-01/04/13 CFA were disallowed;

    Ramos -v- Oxford University Hospitals NHS FT

    Davis -v- Wiltshire PCT

    Following previous similar findings in the cases of Surrey and, AH

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  • The real problem which this case and the others referred to by Aaron Vodden is that we lawyers are too often obsessed with form over content. What possible injustice flows from the court upholding this CFA and what possible damage would have flowed from upholding them in the other cases. The world has never been interested in knowing " how many angels may fit upon the point of a Needle" but for many lawyers such questions seem central to their existence. LJ Jackson seems to be of that ilk.

    Surely there comes a time in litigation when one has to simply take the line which best achieves justice on the facts of the case itself. The Claimant can't get justice without some kind of funding agreement and thus, within reason, the court should encourage such agreements and cast down those defendants (usually insurers) who take technical points.

    I appreciate that such an approach requires judges of the highest calibre, both intellectually and practically if it wasn't to descend into some kind of discretionary free for all but...

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