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Linder Myers costs appeal win has wide reaching effect

A judgement was handed down today at the Royal Courts of Justice ruling that costs can be recovered on a historical medical negligence claim where the Claimant became incapacitated during proceedings which could set a precedent.

The successful appeal, raised by Linder Myers Solicitors, follows a ruling made in 2011 in favour of the Defendant who argued that the costs incurred on the matter following the Claimant’s loss of mental capacity in 2007 should not be recovered based on the premise that such incapacity automatically terminates a solicitors’ retainer.

The costs related to a case involving a Claimant who had suffered brain damage following suction termination and laparoscopic sterilisation procedures at her local hospital. The Claimant’s father, acting as her litigation friend, had initially instructed Linder Myers in 2002 to pursue a claim of medical negligence. However, having regained mental capacity in 2005, she entered into a Conditional Fee Agreement (CFA) and subsequently became incapacitated again in 2007.

Linder Myers submitted a successful application to the Court of Protection which granted it with the authority to act on the client’s behalf as litigation friend and the firm successfully secured a settlement of £2.6m in 2010.

Handed down by Mr Justice Phillips, today’s Judgement stated that ‘the possibility that the client will at some point lose mental capacity is plainly a matter which was within reasonable contemplation of both parties’ and that it would be an ‘unjust and unreasonable result to treat a retainer as terminated by reason of what may be a fleeting period of incapacity.’

Mark Walmsley, senior costs draftsman and head of costs management at Linder Myers Solicitors commented: “This was a significant ruling which challenges previously held Judgements that a solicitor’s retainer is automatically terminated if a client becomes incapacitated during proceedings. In this particular case, the Claimant had suffered significant brain injury as a result of medical negligence so it was reasonable to expect that there was a risk that she would lose mental capacity after temporarily regaining it.

Linder Myers acted properly when this occurred and continued to win a substantial amount of compensation. Today’s Judgement also impacts significantly upon those clients who may lose mental capacity after the 1st April 2013 but who may have entered into Conditional Fee Agreements prior to that date.”


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