Chad Brian James Mole (a protected person by his litigation friend the Official Solicitor) and Another v Parkdean Holiday Parks Ltd and Another
| Jurisdiction | England & Wales |
| Judge | Master Brown |
| Judgment Date | 29 March 2017 |
| Neutral Citation | [2017] EWHC B10 (Costs) |
| Docket Number | Case No: BRO 1604887 |
| Court | Senior Court Costs Office |
| Date | 29 March 2017 |
[2017] EWHC B10 (Costs)
IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE
Master Brown
Case No: BRO 1604887
and
and
Roger Mallalieu (instructed by Irwin Mitchell LLP) for the First Claimants
Robert Marven (instructed by Reynolds Porter Chamberlain LLP) for the Defendants
Hearing dates: 2 March 2017
Judgment Approved
The issue that arises for determination is whether the First Claimant ('the Claimant') is entitled to recover a success fee pursuant to a costs order against the Defendants in respect of work carried by his solicitors for a period after the Claimant's mother was replaced as a litigation friend by the Official Solicitor.
As the title above records, the Claimant is a protected party and the Official Solicitor currently acts as his litigation friend. The Claimant suffered injuries in an accident which occurred on 18 October 2005 at the Trico Bay Holiday Park, South Wales. Then aged seven, the Claimant was found unconscious underwater in a swimming pool at the park; he sustained catastrophic hypoxic brain damage leading to severe and permanent injuries of the utmost severity. On 9 March 2015 HH Judge Court QC approved an order for the payment by the Defendants to the Claimant of lump sum damages of just over £1.35 million and periodical payments commencing at £171,000 per annum. The order provided for the payment of the Claimant's reasonable costs by the Defendants.
The Claimant's claim was originally pursued on instruction from his mother as litigation friend pursuant to a conditional fee agreement which was entered by her with solicitors Irwin Mitchell LLP ('the solicitors') on or about 7 February 2006. The CFA appears in standard form and describes her as the client as mother and litigation friend of the claimant. She was duly appointed litigation friend on the issue of proceedings. The agreement records that the success fee was set at 100% of base profit costs.
In due course concerns arose as to the mother's ability to cope with the effects of the Claimant's injuries and at a CMC on 18 April 2013 HH Judge McKenna ordered her removal as litigation friend and replacement with the Official Solicitor. On 25 July 2013 the Official Solicitor signed a document headed 'Deed of Ratification and Affirmation' (the deed) the evident purposes of which were that instructions of the solicitors continued the same CFA terms as that which had applied earlier. By the terms of the deed the Claimant was described as the client, the parties acknowledged the appointment of the Official Solicitor as litigation friend; further, it was agreed and recorded that on the signing of the deed the Official Solicitor thereby ratified and affirmed the CFA entered into on the client's behalf and confirmed " the instructions of the Official Solicitor to [the solicitors] to continue to conduct the Claimant's claim under the terms of that CFA". There were default provisions such that if there had been no effective ratification or affirmation there was deemed to be a new contract with the solicitors and the success fee was limited to a maximum of 25% of the damages awarded to her, in accordance with the Conditional Fee Agreements Order 2013.
The parties' contentions
The Defendants maintain that it was not possible in fact or law for the Official Solicitor to ratify or affirm the CFA entered by the Claimant's mother. They contend that the effect of the deed was that the Official Solicitor entered a new CFA. No point is taken about the enforceability of any new CFA but because of it being a CFA entered into after 1 April 2013 it is said that no success fee would be recoverable from the Defendants (see section 44 (4) Legal Aid Sentencing and Punishment of Offenders Act 2012).
The Claimant maintains an entitlement to the success fee in respect of the disputed period principally on the basis that the claim for costs is and remains that of the Claimant himself and that the retainer was properly to be regarded as one between the Claimant and the solicitors from the outset and continuing to date. Reliance is placed on the decision of Blankley v Central Manchester and Manchester Children's University Hospitals NHS Trust [2015] EWCA Civ 18 in support of the contention that in circumstances such as these a retainer entered into between solicitors and a litigation friend is properly to be regarded as a retainer between the claimant and those solicitors whom his litigation friend instructs, the relationship between the claimant and the litigation friend being one of principal and agent, or least one akin to it.
Submissions
Neither party relies upon the precise the wording of the CFA or the deed as determinative of the outcome. However, Mr. Marven, for the Defendants, submits that the Official Solicitor could not have ratified or affirmed the terms of the earlier CFA. A principal ratifies the unauthorised acts of a person who has purported to act for him while having no actual authority ( Bowstead and Reynolds, para. 2–004); affirmation is ordinarily used to describe the position where an innocent party, notwithstanding an entitlement to accept a repudiatory breach, elects to treat the contract as continuing ( Chitty, para. 24-003). Neither terms could properly be said to be apply here and thus, he submits, a new contract must have been entered into.
Mr. Mallalieu says that the Claimant's case does not depend upon there being a successful affirmation or ratification of the CFA; if he is right, he says, it is not necessary for the original terms of the CFA to have been ratified or affirmed as the terms of the initial retainer continue as a matter of law.
In Blankley the issue determined in the appeals was whether or not a CFA had terminated automatically by reason of frustration when a claimant lost...
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