Blankley v Central Manchester NHS [2015] EWCA Civ 18: A Narrow Issue? - Matthew Smith, Kings Chambers
20/02/15. The claimant was very seriously injured by the defendant’s clinical negligence. Her capacity to litigate fluctuated. When she had capacity she agreed a CFA with her solicitors. She then lost capacity. On accepted authority, that loss of capacity immediately terminated the solicitors’ agency. The judge at first instance accepted that this brought the contract of retainer to an end. No subsequent retainer was agreed on behalf of the claimant by the person who ultimately became her deputy (a partner in the conducting firm of solicitors). The solicitors plainly acted on CFA terms and claimed a success fee in the bill for the period after the loss of capacity. The judge at first instance concluded that the demised CFA had not been replaced. There was no subsequent CFA in writing. Accordingly, by reason of section 58 of the Courts and Legal Services Act 1990, there was no enforceable retainer between the client and the solicitors for the period after loss of capacity.
Phillips J sitting with assessors [2014] EWHC 168 (QB) allowed an appeal by the claimant having concluded that the claimant’s CFA was not frustrated and did not terminate upon the claimant’s loss of capacity. The defendant appealed. On 27 January 2015, the Court of Appeal handed down judgment. The reasons were given by...
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