Frances Cooke & Ors v Woodchurch House Limited

Inquest costs may be recoverable under a civil costs order where they are of and incidental to the civil claim. However, the statutory disapplication of the indemnity principle under regulation 21 of the Civil Legal Aid (Costs) Regulations 2013 requires legal services to have been provided in relevant proceedings before a court with power to make a costs order. An inquest does not satisfy that definition.

The wider statutory charge under section 23 of LASPO may nevertheless create liability to repay legal aid expenditure where civil legal services include the inquest and the costs are recoverable in connection with the civil claim. A contractual indemnity does not remove the client’s primary liability under the retainer, and a costs cap may be revisited where the retainer permits adjustment for unexpected developments.

The judgment arose during detailed assessment of costs following settled civil proceedings concerning the death of Paul Chin while in the care of the defendant. The three claimants had used different firms and funding arrangements, including Legal Help, legal aid, private retainers, conditional fee agreements and an after-the-event insurance policy.

The defendant raised numerous preliminary objections concerning retainers, the scope of legal aid, the indemnity principle, contractual indemnities, alleged conflicts of interest, topping up, VAT and recovery of the ATE premium. The principal questions concerned whether costs incurred during the inquest could be recovered under the civil costs order and whether the claimants’ funding arrangements supplied the necessary liability.

1. Implied retainer. No implied retainer existed before the Legal Help retainer was created. Applying the two-stage approach in Robinson v EMW Law LLP, the claimants had not shown that Leigh Day accepted them as clients at the relevant time. The evidence instead showed that Leigh Day would not act until legal aid had been obtained. In any event, the evidence indicated that the claimants would not be liable for Leigh Day’s fees. The later client care letter did not retrospectively create a private retainer, and a concurrent retainer for payment would have conflicted with the prohibition on topping up legal aid.
2. Scope and effect of legal aid. The Legal Help retainer was between Ms Cooke and Leigh Day alone. Regulation 9(1) of the Civil Legal Aid (Costs) Regulations 2013 applied funding to an individual, not a family group. Under regulation 21, relevant proceedings had to be proceedings before a court, and a court was defined by its power to make a costs order. The coroner had no such power. The claimants therefore could not obtain the regulation 21 disapplication of the indemnity principle for the inquest costs, and recovery was limited to the applicable legal aid rates.
3. Statutory charge and indemnity. Section 23 of LASPO was materially wider. Civil legal services included inquest work, and the statutory charge could attach to costs payable in connection with those services where the costs were recoverable as of and incidental to the civil claim. Ms Cooke consequently had a liability against which the defendant was required to indemnify her, so there was no breach of the indemnity principle.
4. Private retainer and cap. The Part 2 retainer made the Third Claimant primarily liable to HJA, with Leigh Day providing an indemnity. The £25,000 provision was a cap, but it had to be read with the estimates and limits provisions. Unexpected developments permitted the parties to revisit the funding arrangements. The cap did not limit the recoverable costs absolutely.
5. CFAs and topping up. The CFAs for the First and Second Claimants covered the civil claim and remained operative. HJA’s failure to sign Ms Biron’s CFA did not prevent its formation: the client care letter was advisory rather than a condition precedent, and the parties’ conduct demonstrated acceptance. The CFAs concerned the civil claim, not the legally aided inquest services, and therefore did not breach section 28(2) of LASPO.
6. Other issues. The general conflict objection failed because the defendant identified neither a legal principle nor a specific unreasonable act. VAT was conceded to be irrecoverable for the Third Claimant. The ATE premium was disallowed under section 46 of LASPO, because the claim was not prescribed clinical negligence proceedings.