A costs judge has ruled that a claimant who switched to representation of the Official Solicitor is entitled to the existing costs agreement.
In Mole & Anor v Parkdean Holiday Parks & Anor, Master Brown, sitting in the Senior Courts Costs Office, said the claimant was entitled to recover a success fee in respect of work carried out after his mother was replaced as litigation friend by the Official Solicitor.
The claimant was seven when he suffered serious injuries at a holiday park in South Wales. In March 2015, His Honour Judge Court QC awarded lump sum damages of around £1.35m and periodical payments starting at £171,000 a year. The order provided for the payments of reasonable costs by the defendant.
The claimant had a conditional fee agreement with national firm Irwin Mitchell going back to February 2006, and in July 2013 the Official Solicitor signed a document headed ‘Deed of Ratification and Affirmation’. Reforms which came into force in April 2013 removed the recoverability of success fees from the losing party.
This deed was intended to maintain the instructions of the solicitors on the same CFA terms, but the defendants, represented by Reynolds Porter Chamberlain LLP, maintained it was not possible in fact or law for the Official Solicitor to ratify or affirm the CFA entered by the claimant’s mother.
Claimant solicitors cited the decision in Blankley v Central Manchester and Manchester Children’s University Hospitals NHS Trust, which said the retainer was properly regarded as a retainer between the claimant and those solicitors whom his litigation friend instructs.
Master Brown said the analysis in Blankley clearly led to the conclusion that the 2006 agreement remained effective and was unaffected by the substitution of a new litigation friend.
Accordingly, the claim for costs in the period after the appointment of the Official Solicitor was not dependant on them having entered a new agreement.
‘There was already in existence an agreement which was sufficient to ground the liability of the claimant to pay the success fee under the original CFA for the period after the appointment of the Official Solicitor,’ said the judge. ‘If the defendants were correct the Official Solicitor would be liable for the success fees and would be required, potentially, to pass this liability on to the claimant, a matter of potentially very significant and serious prejudice.’