27.01.2015Blankley v Central Manchester & Manchester Children’s University Hospitals NHS Trust  EWCA Civ 18
Key areas: CFA; capacity; Court of Appeal
This was a second appeal in relation to a CFA, over the Claimant’s temporarily inability to give instructions due to a lack of cacpacity.
At first-instance the Court had held that the CFA was terminated due to frustration, because of her incapacity. On an appeal to the High Court, this ruling was overturned.
The Defendant sought to overturn that ruling, and so re-instate the original ruling.
On this appeal, the Defendant submitted that a principal’s incapacity “terminates” the agent’s ability to act, and so the solicitors had no instructions from that point. They also submitted that in a case involving an individual, instructions had to be personally provided.
The Claimant submitted that when the CFA was entered into, it was known that she had “fluctuating capacity”, and that it related to quantum, which required the evidence of experts, not the Claimant. The Claimant also referred to the terms of the CFA which stated that the solicitors were entitled to end the CFA and seek immediate payment if they had no instructions. The Claimant submitted that it would be unfair to her if the solicitors were able to demand instant payment in this situation.
The Court noted that it was “commonplace” for instructions to be provided via an agent, and that in the circumstances, the parties would have contemplated what would happen should the Claimant be unable to temporarily give instructions.
As a result, the appeal was dismissed, and the CFA upheld.
27.01.2015R (Henderson) v Secretary of State for Justice  EWHC 130 (Admin)
Key areas: criminal; human rights; High Court
This was a hearing to seek a declaration that the LASPO changes to amounts payable to acquitted Defendants are a violation of human rights.
The Defendant was acquitted of a charge of causing actual bodily harm, and sought his costs under s. 16 Prosecution of Offences Act 1985. This was refused due the Recorder lacking jurisdiction. Proceedings were then issued against the Secretary of State to overturn the Record’s views, and to obtain a declaration of incompatibility under s. 4 Human Rights Act 1998.
The Appellant submitted that his inability to reclaim his legal costs carries an implication that he is guilty, which conflicts with assumption of innocence under art. 6 European Convention on Human Rights.
The Court considered caselaw in the ECtHR, and noted that there was a prior ruling that went against this argument.
As a result, the Court held that the changes are compatible with human rights.
The Appellant then attempted to rely on common law and the Bill of Rights 1688, but these too were rejected.
20.01.2015Broni; Woof; Barbour v Ministry of Defence  EWHC 66 (QB)
Key areas: success fee; High Court
This was an appeal against a ruling relating to success fees.
The Appellants were members of the armed forces and were stationed in Norway, and sustained injuries in the course of their service.
At first-instance it was held that the Appellants were “employees” in a “contract of service”, and so fixed success fees applied under CPR 45. The Appellants appealed.
The Appellants submitted that, due to existing caselaw (Quinn v MOD), they were not under a “contract of service”. As a result, due to how “employee” is defined in the CPR, fixed success fees cannot apply.
The Respondent accepted that there was no “contract of service”, but submitted that an exemption would lead to “serious practical difficulties” and “uncertainty” at a Detailed Assessment; that there was no “principled basis” for an exemption; and that the existing caselaw was not relevant.
The Court accepted that there may be practical issues, but did not see why “contract of service” should be given a meaning that was broader than usual.
As a result, the appeal was allowed, and ordered that the Court assess the success fee.
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