MBR Acres Limited & Ors v Gillian Frances McGivern
[2024] EWHC 1869 (SCCO)
Frances Cooke & Ors v Woodchurch House Limited
22 December 2023
[2023] EWHC 3318 (SCCO)
Senior Courts Costs Office
A family sued a care home after their dad died due to neglect. They had different ways of paying their lawyers at various stages of the case (Legal Aid, private payments, etc.). The judge decided who owed how much money to whom after sorting out these complicated payment arrangements, looking at the rules around legal aid and contracts. Basically, the judge figured out the bills for all the lawyers' work.
Key Facts
- •Claim for costs arising from a civil claim following the death of Mr. Paul Chin in a care home.
- •Claimants: Mr. Chin's parents and sister.
- •Defendant: Woodchurch House Limited, operator of the care home.
- •Inquest found neglect contributed to Mr. Chin's death.
- •Claimants initially instructed Leigh Day, then Hodge Jones Allen (HJA) due to a conflict of interest.
- •Civil claim settled for £37,500.
- •Cost proceedings involved numerous preliminary issues concerning funding arrangements (Legal Aid, private retainers, contractual indemnities, ATE insurance).
- •Multiple parts to the Bill of Costs reflecting different funding arrangements.
Legal Principles
Formation of implied retainer.
Robinson v EMW Law LLP [2018] EWHC 1575 (Ch)
Definition of 'proceedings'.
Plevin v Paragon Personal Finance Limited [2017] UKSC 23
Publicly funded litigant cannot make payment for services covered by public funding.
Hyde v Milton Keynes NHS Foundation Trust [2017] EWCA Civ 399
Agreement to continue acting for a client is adequate consideration for a further retainer.
Forde v Birmingham City Council [2009] EWHC 12 (QB)
External party cannot take advantage of a voidable contract if the privy parties haven't voided it.
Forde v Birmingham City Council [2009] EWHC 12 (QB)
Indemnity principle in cost law.
Gundry v Sainsbury [1910] 1 KB 645 and Harold v Smith (1860) 5 H&N 381
Statutory charge for legal aid repayment.
LASPO s.25(1)
Prohibition against 'topping up' legal aid.
LASPO s.28(2)
Recovery of ATE premiums.
LASPO s.46
Civil Legal Aid (Costs) Regulations 2013, Reg. 21(1): Disapplication of indemnity principle.
Civil Legal Aid (Costs) Regulations 2013
Contractual interpretation: objective approach.
Contractual variation and consideration.
MWB Business Exchange Centres Ltd v Rock Advertising Ltd [2018] UKSC 24
Contract formation and acceptance.
Renveille Independent LLC v Anotech International (UK) Limited [2016] EWCA Civ 443
Recoverability of inquest costs in civil proceedings.
Re Gibsons Settlement Trust and Roach v The Home Office
Outcomes
No implied retainer existed before the Legal Help retainer.
Lack of evidence that Claimants were Leigh Day's clients before securing Legal Aid; evidence suggests Leigh Day wouldn't act without Legal Aid.
Legal Help retainer was only between Ms. Cooke and Leigh Day, not the other Claimants.
Absence of Legal Help certificate; file evidence indicates Legal Aid for Ms. Cooke only; s.9(1) Regulations.
Claimants could not rely on Reg. 21(1) to disapply the indemnity principle.
Inquest is not 'relevant proceedings' as defined in the Regulations because a coroner lacks the power to make costs orders.
Indemnity principle not breached; Ms. Cooke liable to repay LAA under s.23 LASPO.
Civil legal services encompass inquests; costs recoverable under Roach principles; s.23(1) LASPO creates liability.
Conflict of interest between Leigh Day and Claimants did not prevent cost recovery.
Defendant failed to show unreasonable conduct by Leigh Day; any preliminary work was necessary.
Part 2 retainer: Primary liability for HJA's fees rests with the Third Claimant; £25,000 cap on inquest costs, but subject to exceptions for unforeseen complexities.
Contractual interpretation; agreement to continue acting is adequate consideration; Forde principles apply; MWB distinguished.
Parts 3 and 4: CFAs cover civil costs; no 'topping up' of legal aid.
CFAs were in place before the relevant period; separate retainers for inquest and civil claim; no additional payment for inquest work under CFAs.
Part 5: VAT disallowed for the non-UK resident Third Claimant.
Concession by Mr. Munro.
Part 6: CFA valid despite lack of HJA signature; apportionment not necessary; VAT disallowed for Ms. Biron.
Acceptance by conduct; Renveille principles; Forde principles; concession on VAT.
ATE premium disallowed.
Claim does not fall within exceptions to s.46 LASPO.