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Taking a wrong turn

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22 March 2018 / Dominic Regan
Issue: 7786 / Categories: Opinion , Insurance surgery , Costs
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Dominic Regan reflects on the fall-out from changing funding from legal aid to a conditional fee agreement

It is remarkable for the Court of Appeal to deliver a judgment running to 21 pages a week after a two-day hearing. Yet that is what happened in Surrey v Barnet and Chase Farms Hospitals NHS Trust (2018) EWCA Civ 451. The muscular decision is of profound significance to the profession.

Crucial timing

In the three cases which were under appeal, each claimant had been funded by legal aid in pursuit of clinical negligence damages. Just before the Jackson reforms kicked in on 1 April 2013, they all changed horse and entered into a conditional fee agreement (CFA) reinforced by after the event (ATE) insurance.

By the time each legal aid certificate was discharged, the defendant was in principle the paying party, although in one action there was still an important issue about causation to resolve. The timing was crucial. Any such arrangement created after that

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