Many firms of Solicitors switched funding from Legal Aid to CFA prior to 1 April 2013.
There have been a number of decisions relating to this issue in recent weeks.
In the case of Surrey v Barnet and Chase Farm Hospital NHS Trust  EWHC B16, Master Rowley ruled that success fee and ATE insurance premium were irrecoverable on the basis of the advice given to the Claimant was "insufficient on which to found any proper or reasonable conclusion". This was because the Claimant's Solicitors had not informed the Claimant of the fact that the 10% enhancement upon general damages would be lost on transfer to CFA.
Further recent cases have also seen the success fee and ATE insurance premiums disallowed on the basis of inadequate advice.
In AH v Lewisham Hospital NHS Trust  EWHC B3, Deputy Master Campbell referred to the fact that a "very significant component" to the advice given was missing. That was, again, reference to the fact that the Claimant's Solicitor had not informed their client that the 10% enhancement upon general damages in Simmons v Castle would be lost on transfer to CFA. In this case, the 10% figure could have been worth as much as £17,500.00 to the Claimant.
In Ramos v Oxford University NHS Trust  EWHC B4, Master Leonard came to the same conclusion.
It is not all bad news for Claimants though. The High Court has, this week, upheld the decision of Master Rowley in the case of Milton Keynes NHS Trust v Hyde  EWHC 72 (QB).
The Claimant had entered into a pre 1 April 2013 CFA when the funding under the Legal Aid Certificate had been exhausted, though there had been no application for discharge of the certificate.
Master Rowley had confirmed that it was reasonable for the Claimant to have moved from Legal Aid funding to CFA in circumstances where the funding under the certificate had been exhausted and the LSC had indicated that there would be no further funding under the certificate.
Soole J, hearing the appeal confirmed that it was "reasonable and proper" for the Claimant to enter into a CFA and that there was no concurrency of public and private funding. The trust's appeal was rejected.
It seems clear that there will be great difficulty in persuading the Courts that transfer from Legal Aid to CFA prior to 1 April 2013 was a reasonable step to take unless it can be proven that the Claimant was given appropriate advice, and that the full implications in relation to the loss of the 10% Simmons v Castle uplift were explained.