SCCO reference CL1503600
SENIOR COURTS COSTS OFFICE
Thomas More Building,
Royal Courts of Justice, Strand,
London, WC2A 2LL
B e f o r e :
| Arianna Ramos
|- and -
|Oxford University NHS Trust
Matthew Smith (instructed by Acumension Ltd) for the Defendant
Hearing dates: 20 and 21 October 2015
Crown Copyright ©
Mr Sankey on the Change in Funding
Written advice on the Change of Funding
"As you are aware, the claim is currently funded by the Legal Services Commission. The terms under which the Legal Services Commission funds claims has made it progressively more difficult to conduct claims properly. The principal difficulty is one of funding. The Legal Services Commission requires me to instruct experts who charge no more than £180 per hour and will not agree to us "topping up" the fees - paying the higher rates that experts charge and only claiming £180 from the Legal Services Commission. None of the experts I have instructed to date charge as little as £180 per hour. I therefore cannot work within the constraints of the Legal Services Commission.
On the other hand, there is alternative funding available in the form of a Conditional Fee Agreement. In broad terms this is an agreement under which this firm only charges for work undertaken if the claim succeeds (which is highly likely to). We are then entitled to charge a "success fee" which will be an increase on our basic charges paid for by the Defendants which relates to the degree of risk the firm is taking in progressing the claim under a Conditional Fee Agreement. Given that liability has been admitted, that risk is quite modest.
I will also need to take out insurance. This will cover the cost of incurring expenses and failing to recover them from the Defendants and also if for any reason the Court orders you to pay the Defendant's costs. Although this is unlikely, it is possible at some stage that they could become entitled to recover some costs if, for instance, they made a settlement offer which we did not accept and then failed to beat.
In simple terms under a Conditional Fee Agreement, neither you nor Arianna will pay any costs whether the claim succeeds or not and there will be no deduction from damages. This is in fact slightly better for Arianna than current funding where it is possible that the Court would order some of the costs, for instance of dealing with the Legal Services Commission, to be paid by Arianna to this firm from her damages but not order the Defendants to pay those costs.
I am therefore enclosing an application to discharge the certificate and also a Conditional Fee Agreement. Please would you kindly sign and return the Conditional Fee Agreement to me. I have not dated the Conditional Fee Agreement and will date it once the Legal Aid Certificate is discharged".
Other Documents Sent to Mrs Ramos in February 2015
"We know that our clients often worry about the cost of making a claim. We are able to offer you a solution that means you can pursue your claim in complete confidence that - win or lose – it will cost you nothing."
While we won't charge you if your claim is unsuccessful, you could still be left with a large costs bill from the defendant. In order to ensure you aren't at risk of having to pay any bill incurred we will secure an insurance policy on your behalf (in the absence of any alternative funding) to make sure you're protected. We will arrange the policy at no cost to you.
We will take out a policy which offers competitive premiums that we would hope to be able to recover in full. We have arrangements with insurers that give us full authority to take on your case. We will consider the level of cover appropriate for your situation and ensure it will give you total costs protection.
The insurance policy premium doesn't need to be paid until the end of your case, and if you are successful the payment will be met by the defendants. If your case is unsuccessful, the premium is self-insured so you won't need to pay for it or any other costs".
"…we are also obliged to provide information on disbursements we incur on your behalf as part of your case. These may include, but aren't limited to, fees paid to experts for expert reports, court fees, or any fees paid to barristers for representing you. Again, these costs will be claimed against the defendant insurer and not you. We will consult you before incurring any substantial disbursement, and in particular before instructing any barrister on your behalf."
"Your lawyer will review your claim from time to time to assess the prospects of success. If the prospects of success fall below 50% we may have to terminate the CFA and ATE policy. If this does happen, you won't have to pay anything towards our costs."
"As long as you are able to uphold your responsibilities during your claim as set out below, we are able to cover you for all the legal costs related to the investigation and pursuit of your claim…"
"…you will become responsible for costs incurred on your claim until that point. You may also have to pay the other side's legal costs. If this happens we will give you details of the costs that you are liable to pay and of your rights to have those costs fairly assessed."
"Naturally we very much hope that you will win your claim. However, some claims do fail. An After the Event insurance policy is there to protect you against the risk that you might have to pay your opponent's or any other legal costs in the event that you are unsuccessful…
If for any reason you are unsuccessful in your claim, then so long as you have complied with your agreement with us and the terms of the insurance policy, then you will not have to worry about paying your opponent's costs. What is more, you will not have to worry about meeting the cost of the premium for the insurance policy or indeed any of the other costs which we have to incur on your behalf known as "disbursements". These are the costs we incur to progress your claim such as medical records and medical reports. The insurance policy will cover both the insurance premium itself and also your disbursements in the event that you lose. As you know, we do not get paid if you lose".
Oral Advice on the Change of Funding
"Alternative funding is available in the form of a Conditional Fee Agreement. The case relies heavily upon expert evidence from experts…Our experts' charges exceed £180 per hour and we are not prepared to compromise the claim by instructing cheaper expert in whom we do not have confidence…"
The ATE Documentation
"You must not settle or discontinue the action without our prior written consent…
We would specifically highlight your obligation to work with, and follow the recommendations of, Russell Jones and Walker…
It is important that you understand that your opponent can challenge the level of the premium under any ATE policy, or whether ATE cover should have been taken out at all, something which your solicitor will have had a duty to advise you about at the start…Whatever the courts decide is payable by your opponent, you are responsible for paying the whole premium to us. This may mean you have to pay part or all of the premium out of your own funds."
The Defendant's Submissions on the Relative Merits of LSC and ATE/CFA Funding
The Claimant's Submissions on the Relative Merits of LSC and ATE/CFA Funding
The Date of the ATE Policy
Conclusions on Reasonableness
"(1) Where the court is to assess the amounts of costs …the court will not …allow costs which have been unreasonably incurred or are unreasonable in amount…
(2) Where the amount of costs is to be assessed on the standard basis, the court will –
(a) only allow costs which are proportionate to the matters in issue; and
(b) resolve any doubt which it may have as to whether costs were reasonably incurred or reasonable and proportionate in amount in favour of the paying party…."
"…The court is to have regard to all the circumstances in deciding whether costs are –
If it is assessing on the standard basis –
Proportionately and reasonably incurred;
Were proportionate and reasonable in amount…"
"When the court is considering the factors to be taken into account in assessing an additional liability, it will have regard to the facts and circumstances as they reasonably appeared to the solicitor or counsel when the funding arrangement was entered into…"
"In deciding whether a percentage increase is reasonable, relevant factors to be taken into account may include:
(a) The risk that the circumstances in which the costs, fees or expenses would be payable might or might not occur;
(b) The legal representative's liability for any disbursements;
What other methods of financing the costs were available to the receiving party."
Summary of Conclusions