Hyde v Milton Keynes NHS Foundation Trust

Sections 10(1) and 22(2) of the Access to Justice Act 1999 prohibit concurrent payment for publicly funded legal services. They do not render a conditional fee agreement unenforceable merely because the public-funding certificate was not formally discharged.

Whether a party remains legally assisted is a question of substance. An undischarged certificate is evidence, but is not conclusive. Where a private retainer wholly supersedes public funding, and there is no actual concurrency or prospect of topping up, the private retainer may be enforced. Formal discharge remains generally desirable. Notification to the opposing party will often be the appropriate date of change, but justice and fairness may require a different conclusion.

The claimant settled a clinical-negligence claim after liability had been admitted. She had initially been publicly funded, but her solicitors considered that the certificate's financial limit was inadequate to complete the quantum claim. The claimant therefore entered into a conditional fee agreement, with a success fee and after-the-event insurance. The certificate was never formally discharged.

On detailed assessment, Master Rowley held that the claimant could recover the success fee and insurance premium. Soole J dismissed the defendant's appeal: [2016] EWHC 72 (QB). The defendant appealed, contending that the continuing certificate made the CFA unlawful and unenforceable. The central issue was whether formal discharge was an essential precondition to enforcement of the CFA.

1. Appeal dismissed. The claimant could recover the costs claimed under the CFA, including the success fee and after-the-event insurance premium.

2. Sections 10(1) and 22(2) of the Access to Justice Act 1999 prohibit an obligation to make, and an entitlement to receive, payments for publicly funded services other than those authorised by the statutory scheme. The provisions address actual concurrent payment for services. They do not state, and the Regulations do not imply, that a CFA is unenforceable solely because the related public-funding certificate has not formally been discharged.

3. Section 22(1)(a) preserves a publicly funded litigant's ability to enter a private retainer. After the CFA was made, the solicitors provided services under that private retainer, not under the certificate. The CFA entirely superseded public funding for those services and prevented any claim to the Legal Services Commission for them. There was therefore no concurrency and no prospect of topping up.

4. The earlier authorities established that an undischarged certificate is not invariably decisive. Its effect is evidential and the court may examine, as a matter of substance, whether public funding has in truth been spent or superseded. Although those cases involved certificates limited by the scope of authorised work, rather than a financial limit, their broader focus on justice, fairness and substance applied.

5. There may be difficulty in fixing the precise date on which legal assistance ends. Notice to the opposing party will ordinarily be appropriate, but no inflexible rule should be imposed. On these facts, the CFA took effect as a definitive replacement for public funding and no overlap occurred. Formal discharge remained generally desirable, but its absence did not alter the result.

• Court of Appeal (Civil Division) Dismissed the defendant's appeal and upheld the recoverability of the CFA success fee and after-the-event insurance premium.

• High Court (Queen's Bench Division) Soole J, sitting with Master O'Hare as assessor, dismissed the defendant's appeal from the costs judge: [2016] EWHC 72 (QB).

• Costs Judge Master Rowley held that the claimant could recover the disputed CFA-related costs.