Rely on the most comprehensive, up-to-date legal content designed and curated by lawyers for lawyers
Work faster and smarter to improve your drafting productivity without increasing risk
Accelerate the creation and use of high quality and trusted legal documents and forms
Streamline how you manage your legal business with proven tools and processes
Manage risk and compliance in your organisation to reduce your risk profile
Stay up to date and informed with insights from our trusted experts, news and information sources
Access the best content in the industry, effortlessly — confident that your news is trustworthy and up to date.
With over 30 practice areas, we have all bases covered. Find out how we can help
Our trusted tax intelligence solutions, highly-regarded exam training and education materials help guide and tutor Tax professionals
Regulatory, business information and analytics solutions that help professionals make better decisions
A leading provider of software platforms for professional services firms
In-depth analysis, commentary and practical information to help you protect your business
LexisNexis Blogs shed light on topics affecting the legal profession and the issues you're facing
Legal professionals trust us to help navigate change. Find out how we help ensure they exceed expectations
Lex Chat is a LexisNexis current affairs podcast sharing insights on topics for the legal profession
Discuss the latest legal developments, ask questions, and share best practice with other LexisPSL subscribers
The case Ramos v Oxford University NHS Trust is a reminder that solicitors must keep clients fully briefed on funding options, says Gordon Exall of Zenith & Hardwicke Chambers.
This case looked at the reasonableness of a decision to move from legal aid to a conditional fee agreement (CFA) shortly before 1 April 2013, when the Legal Aid, Sentencing and Punishment of Offenders Act 2012 restricted the right to recover success fees
and after the event (ATE) premiums.
In short, if the decision was reasonable, the additional liabilities were recoverable from the defendant. If the decision was not reasonable, the additional liabilities were not recoverable. This case was significant because it shows the importance the
courts place on solicitors giving clients proper and sound advice in relation to costs and funding for those costs to be recoverable.
The court concluded that the claimant’s solicitor failed to carry out a full and adequate analysis of the advantages and disadvantages to the claimant of switching funding arrangements. The solicitor’s advice that there was no option but to
change funding arrangements was based on broad assumptions that lacked any sound foundation. The solicitor had not advised the client that changing funding meant that the claimant would not be entitled to the Simmons v Castle 10% uplift on
general damages (Simmons v Castle  EWCA Civ 1039,  1 All ER 334).
On the basis of the advice given, the court held that the claimant was not in a position to make an informed decision about changing the funding arrangements, this rendered the change unreasonable. The success fee and ATE premium were therefore not recoverable.
The judgment is a warning to solicitors that they must ensure that their clients are fully informed when it comes to funding arrangements, particularly when changing those arrangements. The reasonableness of costs that have been incurred not only depends
on the costs being reasonable in themselves, but whether they were incurred on the basis of adequate advice and understanding.
There are similar cases where the decision to change funding arrangements was held to be reasonable. In Milton Keynes NHS Foundation Trust v Hyde  EWHC 72 (QB),  All ER (D) 158 (Feb) it was held that a switch from legal aid to a CFA
was reasonable. In that case the claimant had exhausted the costs that could be claimed under the legal aid certificate and the switch was a reasonable one. This decision was subsequently upheld on appeal.
It is worth noting that the claimant’s solicitor in this case had to give evidence and be cross-examined on the decision made to change funding. The absence of any documentary evidence and the inability of the solicitor to recollect giving advice
on key matters was not helpful.
Under cross-examination, Mr Sankey admitted that he was unsure whether he had discussed Simmons v Castle with Mrs. Ramos. It is for the claimant to establish on the balance of probabilities that he did, and the evidence offered in support of that
proposition is not adequate to do so. Cross-examination has happened in other similar cases. It is important that advice on funding, as with any advice, is supported by adequate documentation and the solicitor is able to justify the advice given.
In one way this was a historical blip following changes in the law relating to conditional fee agreements. The courts have held that it was perfectly proper for solicitors to review funding arrangements when it was clear the law was changing. However,
the trend is clear—this type of change can only be justified if it was, ultimately, for the client’s benefit rather than the lawyers.
Interviewed by Anne Bruce.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
First published on LexisPSL Dispute Resolution. Click here for a free trial.
Free trials are only available to individuals based in the UK
* denotes a required field
**excludes LexisPSL Practice Compliance, Practice Management and Risk and Compliance. To discuss trialling these LexisPSL services please email customer service via our online form. Free trials are only available to individuals based in the UK. We may terminate this trial at any time or decide not to give a trial, for any reason. Trial includes one question to LexisAsk during the length of the trial. See our full terms here.
Access this article and thousands of others like it free by subscribing to our blog.
Read full article
Already a subscriber? Login
0330 161 1234