The issue of whether a CFA entered into by a Litigation Friend on behalf of a protected party could be adopted by a subsequent Litigation Friend or whether the second Litigation Friend needed to enter into a new agreement was addressed recently in the case of Mole v Parkdean Holiday Parks. This is one of the first reported cases on this subject and the judgment provides important guidance for practitioners as to the nature of the relationship between a solicitor, a Litigation Friend and a Claimant.
The Claimant suffered a brain injury as a child as a consequence of an accident in a swimming pool at a holiday park. The judge awarded lump sum damages of just over £1,350,000 and periodical payments starting at £171,000 per annum. The Order provided that the Defendant pay the Claimant’s reasonable costs.
Pre April 2013 and post April 2013 rules
The issue was of particular importance as the original agreement was entered into pre April 2013 and the change of Litigation Friend occurred post April 2013; if it was deemed that the new Litigation Friend had to enter into a new agreement, any additional liabilities would not be recoverable as per the post April 2013 rules.
Deed of ratification and affirmation
The CFA appeared in standard form and described the Litigation Friend as ‘mother and Litigation Friend of the Claimant’. Concerns arose over the Claimant's mother's ability to act as Litigation Friend and Judge McKenna ordered her removal as Litigation Friend and replacement with the Official Solicitor. On July 2013 the Official Solicitor signed a document headed ‘deed of ratification and affirmation' with the view to continuing conduct under the previous CFA.
In any case, default provisions were in place so that if it was determined that no effective ratification or affirmation was in place, it was deemed that a new contract had been entered into with the solicitors. Therefore, the crux of the issue surrounded whether the Claimant was entitled to the additional liabilities provided for in the previous CFA wherein the success fee was set at 100% of profit costs.
The Defendant argued that this was a new agreement and as it had been entered into post April 2013 the additional liabilities were not recoverable under the post 2013 rules.
The Claimant maintained their entitlement to the success fee on the basis that the claim remained that of the Claimant’s himself and the retainer was therefore to be regarded as between the Claimant and the solicitors from the outset and continuing to date.
In deciding on this point Master Brown relied upon the case of Blankley stating that “the analysis in Blankley is clear and it leads to the conclusion that the retainer that was first entered into 2006 has remained effective during the course of the claim unaffected by the substation of a new Litigation Friend’ [sic].
Master Brown was not persuaded that there was a proper basis to deviate from the decision in Blankley and held that the original retainer remained in place and remained unaffected by the substitution of a new Litigation Friend, he expressed:
“Whilst the Litigation Friend enters into a retainer in his own right, he does so on behalf of a protected party and in doing so the retainer is created between the protected party and the solicitor, this does not change if the identify of the Litigation Friend changes”.