Terms of CFA descriptive, not prescriptive

In the matter of Drew Malone v. Birmingham Community NHS Trust  [2018] EWCA Civ 137, the Court of Appeal had to decide whether the terms of the Claimant’s CFA, which referred to a claim against the Home Office (the Claimant had been a prisoner at the time his cause of action arose and so it was initially, incorrectly, assumed the Home Office would be the Defendant) precluded costs being recovered from the Defendant NHS Trust.


In the first instance, District Judge Phillips, the regional costs judge for Wales, took the view that costs could not be recovered, because the Claimant had no contractual liability to pay costs to his solicitors under the terms of the CFA. The Claimant’s appeal was initially dismissed and he obtained permission to appeal again to the Court of Appeal.


The Court of Appeal noted that the matter would turn on the construction of the sentence:


“All work conducted on your behalf following your instructions provided on [sic] regarding your claim against Home Office for damages for personal injury suffered in 2010”


The Court noted that the CFA contained a number of errors and omissions, observing that “no great care” had been taken in its drafting, however this lack of care ultimately supported the Claimant’s Solicitor’s case, as it was, the Court held, consistent with the intention for the words of the contract to be descriptive of the work envisaged in pursuing the claim, and not prescriptive; had the intention been to limit the scope to a specific Defendant then one would have expected greater care to have been taken.


The Appeal was therefore allowed. Whilst, of course, each dispute as to the construction of a CFA will ultimately turn on its individual facts, the Court of Appeal’s decision will be reassuring to many Claimant firms.



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