Costs Judges overturned on Appeal, Partner Gary Knight investigates
It is perhaps not the best of times to be a costs judge with their decisions being overturned on appeal.
Foskett J sitting with the senior costs judge Gordon-Saker overturned three decisions made by costs judges when dealing with 3 conjoined appeals â€“ Kai Surrey (A child and protected party) v Barnet & Chase Hospitals NHS Trust, AH (A protected party) v Lewisham Healthcare NHS Trust and Mehmet Yesil (A child and protected party) v Doncaster & Bassett Law Hospitals Foundation Trust  EWHC 1958 (QB).
On three separate occasions costs judges had, when considering whether it was reasonable to have switched from Public Funding to a CFA with ATE, found that it had been unreasonable disallowing the additional liabilities.
The original challenges before the costs judges had included reference to the fact that Litigation Friends had not been advised that the switch shortly before 1 April 2013 would deprive the Claimants of the 10% uplift on general damages provided in Simmons v Castle  EWCA Civ 1039.
The Defendants, effectively the NHSLA, argued that the decisions to switch to CFAs were based on â€œmaterially unreasonable adviceâ€ and that a reasonable person in the position of the Litigation Friend would have been likely, when considering the method of funding switch, to attach significance to the fact that the Claimant would lose the 10% uplift with the Defendants placing reliance on Montgomery v Lanarkshire Health Authority  UKSC 11, where the Supreme Court had reviewed the law on informed consent in the context of a medical practitionerâ€™s duty to inform a patient as to the risk involved in proposed treatment.
In each matter the costs judge accepted the Defendantâ€™s submissions disallowing success fees and after-the-event insurance premiums.