Court of Appeal judges have ruled that a costs agreement was not limited to the defendant named in the document itself. The court overturned an earlier judgment in Malone v Birmingham Community NHS Trust which held that no costs were recoverable from the defendant because the conditional fee agreement was limited to a claim against the Home Office.

The claimant successfully appealed that decision on the basis that the CFA was merely identifying the claim and not specifying the identity of the defendant.

The claimant was a prisoner at HMP Birmingham when he claimed he suffered a negligent failure to diagnose testicular cancer. The claim settled for £10,000 in March 2014.

The CFA included an agreement stating that all work was ‘conducted on your behalf following your instructions provided on [sic] regarding your claim against Home Office for damages’.

The defendant contended these words related to the work to be conducted, that the CFA made a ‘positive choice’ to specify the defendant and it followed the court should not construe it to apply to a claim against any other defendant.

The claimant said the words related to the instructions provided: reference to ‘Home Office’ did not limit the scope of the CFA and instead was designed to cover all the work done.

Lord Justice Hamblen, giving the lead appeal judgment, said the CFA demonstrated ‘poor quality drafting and little attention to detail’, including leaving out the date of instructions and the description of the claim. But he said the construction of the CFA should be put in context and was consistent with being ‘descriptive rather than presciptive’.

The judge added: ‘If the intention had been to define and limit the coverage of the CFA to claims against a particular defendant, greater care and precision would be expected and, in particular, one would not expect the named defendant to be an entity which was obviously inappropriate.’

The CFA, the judge continued, was entered into at an early stage and before proceedings were commenced, and it was in neither party’s interest to seek to impose strict definitional limits.

The court ruled that the CFA was not to be considered as being limited to a claim against the Home Office, and allowed the claimant’s appeal.