The title might suggest a retelling of the familiar tale of Jekyll and Hyde, but reworked to milk its concept for modern audiences. Alas, the concept here is rather more mundane, though for some, no less terrifying in the interaction between Legal Aid and a CFA: does the former preclude the latter?
This very simplistic rationalisation is what the ‘trilogy’ of cases in the ‘saga’ of Sally Anne Hyde v Milton Keynes, is all about.
Starting with Master Rowley’s judgment, in July 2015, the second ‘volume’ was published in January 2016, with Mr Justice Soole’s decision, following the Defendant’s appeal.
The saga came to a satisfying conclusion (for the Claimant), in a Court of Appeal Judgement, dated 23 May 2017. At its simplest, the decision was that a CFA allowed recovery of base costs and additional liabilities, despite the CLS certificate not being discharged. There was no question of ‘topping up’ and seeking more money than entitled to, under Legal Aid.
The slim concept was thus transformed into a three-part story with a core cast of characters on a widening stage. Aficionados of Tolkien, will perhaps recognise this approach, from the Hobbit. No doubt, ‘big money’ played its part in the latter being expanded from a slim volume, to a ‘major’ film trilogy.
‘Big’ money may have played a part in the above basic Legal Aid versus CFA concept, being spun out in that potentially considerable sums were at stake. Additional liabilities were limited by the first instance decision to a 25% success fee for the solicitor and 10% for Counsel. The percentages were not high but no doubt base costs were considerable, in view of the ‘back story,’ described to varying degrees in the judgements.
It is perhaps reasonable to assume that a ‘war council’ was held, to identify the core focus of the quest for answers. Tactics, resources, possible losses, against valuable gains would have been thrashed out before moving from one part of the quest to another.
Unless the parties possessed considerable intelligence, the decisions to move forward would include assessing the risks of an unknown (and diminishing) bank of cases.
There may be different views on who were the protagonists and antagonists in our saga. Perhaps the NHSLA and it’s advisers considered themselves to be the heroic contenders protecting the public purse against voracious foes. No doubt the Claimant’s team felt it had to engage in the battle to protect access to justice.
The Hyde case might be very much fact sensitive, as seems to be the defining conclusion of Lord Justice Davis:
“In my opinion the costs judge and Soole J reached the right conclusion, given the circumstances of this particular case.”
However, it does confirm that, while desirable, it is not essential for the Legal Aid to have been formally discharged for a CFA to have been validly entered.
The above descriptions may be a little fanciful, in comparing this case, to a trilogy of novels/films. However, it is one example of the continuing tension between the opposing sides in costs litigation. Up and down the country, lines are still being drawn, and skirmishes taking place.
Whichever side of the line you are on, Victoria Square Chambers can play a part in resolving your part of what might broadly be described as ‘The Justice Chronicles’.
The next published work in these could have your case name and a positive outcome for you.
Approach the expert guides, for your next quest for a just result on costs.
John Hodgkinson is a Solicitor & Senior Advocate at Victoria Square Chambers.
To contact him on any of the matters raised in this blog, please email, please click here.
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