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Home > ATE Caselaw > Malone v Birmingham Community NHS Trust (2018) EWCA Civ 1376 (19 June 2018)

Malone v Birmingham Community NHS Trust (2018) EWCA Civ 1376 (19 June 2018)

Malone v Birmingham Community NHS Trust (2018) EWCA Civ 1376 (19 June 2018)

The Issues

The Claimant was a prisoner at HMP Birmingham. He alleged that there had been a negligent medical treatment at the prison where health care services were provided by two NHS trusts.

There were three potential Defendants in the proceedings were issued but the Home Office was the only Defendant named in the Claimants CFA.

Prior to service of proceedings, the Defendant acknowledged that it was responsible for the claimant’s treatment and they were the only party served with proceedings.

Settlement was subsequently reached but on detailed assessment, the Defendant argued that no costs were payable to the Claimant, as the CFA was limited to a claim against the Home Office.

At first instance, District Judge Phillips held that the CFA excluded a claim against the Defendant, as a matter of CFA construction and HHJ Curran QC dismissed the first appeal.

The Claimant took the matter to the Court of Appeal, before Lord Justice Hamblen and Lord Justice Patten.


The Court of Appeal, having considered the case of Wood v Capita Insurance Services [2017] UKSC 24 accepted that, on the facts of the case, the reference to “Home Office” described the instructions received, rather than the work to be done, and related to past instructions, rather than future work.

The Judge stated, in respect of the paragraph on cover, that:

As a matter of language ... the most natural reading of the critical wording is that the CFA covers "all work conducted" on the claimant's behalf which follows from the "instructions provided" in respect of his claim "against Home Office". In other words ... the reference to "Home Office" is descriptive of the instructions received rather than of the work to be done. It relates to past instructions rather than future work’.

The terms of the CFA were ‘descriptive rather than prescriptive’, with the function of the CFA being to identify the claim, rather than specify the identity of the correct Defendant.

The decision in Law v Liverpool City Council [2005] EWHC 90020 (costs) was distinguished.


This decision does not clearly deal with the position when the wrong Defendant is named on a CFA, as opposed to stating the work that is covered. So what is the best way around this issue?

Perhaps you should include a statement in the CFA that it covers “the personal injury matter arising from ….” then set out the nature of the claim, rather than specify a Defendant. The paying party can still challenge costs but you won’t get caught out because the wrong Defendant is named in the CFA.

Put simply, do not name the Defendant in your CFA.

The good news is that the ClaimSafe policy which Box Legal provides is flexible on this issue.

The insurer appreciates that it is common for defendants to change while a claim continues and the identity of the defendant does not affect the risk or premium. The validity and cover of the ClaimSafe ATE policy is therefore not dependent on the Defendant being correctly named, or indeed, named at all.


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