On appeal from Master Wright
sitting as a Deputy District Judge
of the Bristol County Court
London, EC4A 1DQ
B e f o r e :
Sitting as a Recorder
| KEVIN BROWN AND FIVE OTHERS
|- and -
|RUSSELL YOUNG & CO (a firm)
Mr Justin Fenwick QC (instructed by James Chapman & Co) for the Respondents
Hearing date: 31 March 2006
Crown Copyright ©
Master Hurst :
"1.Claimants in these test cases are former coal miners who suffered Vibration White Finger ("VWF") whilst employed by British Coal. They, along with more than 100 others, instructed the Defendant firm to act for them in their personal injury claims against British Coal.
2. Between 1997 and 1998 the Defendant advised the various Claimants to settle their claims at amounts which are alleged to have been below their true value and without waiting for an important Court of Appeal test ruling. This would, the Claimants allege, have given them a more favourable Handling Agreement ("the 1999 Scheme") through which to settle their claims at their true levels. In 1998, following intervention by the OSS, the Defendant ceased practice.??
3. Between December 2001 and October 2002 the Claimants and many others instructed Burroughs Day to bring professional negligence claims against the Defendant. The Solicitors' Indemnity Fund appointed James Chapman & Co to defend the claims. The Defendant denied liability.?
4. Following receipt of Part 36 offers the Claimants settled their claims without proceedings having been started. They then started proceedings in accordance with Part 44.12A (costs-only proceedings) using the Part 8 procedure.?
5. On 4 August 2003 District Judge Frenkel (in the Bristol County Court) ordered the Defendant to pay the Claimants' costs to be determined by detailed assessment pursuant to CPR 44.12A and further ordered (among other things) that:
"3. The parties shall identify and agree by no later than 29 August 2003 a maximum of 6 claims of which Burroughs Day has conduct to be lead claims for the purpose of resolving the issues. Burroughs Day and James Chapman & Co shall each select 3 of the lead claims.""
a) compliance with the CFA Regulations;
b) the amount of the Claimants' entitlement to a success fee;
c) the issue of travelling expenses and travelling time;
d) the Claimants' entitlement to the claimed or any amount in respect of "generic" costs.
The first three of those issues were disposed of, but the last issue relating to generic costs was not reached in the time available.
"Where a Part 36 offer or a Part 36 payment is accepted without needing the permission of the court, the Claimant will be entitled to his costs of the proceedings up to the date of giving notice of acceptance."
"30. In my judgment generic or common costs can only be recovered either in circumstances where the Court has made an appropriate order which (under the Civil Procedure Rules) will be pursuant to CPR 19.11, or where the client has agreed with the solicitor that he will be liable to the solicitor for such costs.??????
31. In the present case it is common ground that no such order of the Court has been made. All these cases were settled without the need for proceedings to be issued.?????
32. The only evidence about the agreement made by the individual Claimants with their solicitors is to be found in the respective conditional fee agreements. A careful examination of those agreements leads me to conclude that all the conditions are centred on work done by BD for the specific claim made by the individual client. There is in my judgment no indication at all in the wording of the CFAs that basic charges or disbursements include charges for work done by other solicitors or disbursements relevant to anything other than BD's own disbursement and charges in connection with the individual claims.
33. Further there is no indication that the client's liability cannot be finally determined until the conclusion of the litigation and that the provision in paragraph 4 of the CFA (referred to in paragraphs 18 and 19 above) could delay the payment to the client of the damages which he has been awarded in the manner suggested by the Claimants."
"(1) The court may make a Group Litigation Order (GLO) where there are or are likely to be a number of claims giving rise to the GLO issues . . ."
"Costs where the court has made a group litigation order
48.6A (1) This rule applies where the court has made a Group Litigation Order ('GLO').
(2) In this rule -
(a) 'individual costs' means costs incurred in relation to an ?individual claim on the group register;
(b) 'common costs' means -
(i) costs incurred in relation to the GLO issues;
(ii) individual costs incurred in a claim while it is proceeding as a test claim, and
(iii) costs incurred by the lead solicitor in administering the group litigation; and
(c) 'group litigant' means a claimant or defendant, as the case may be, whose claim is entered on the group register.
(3) Unless the court orders otherwise, any order for common costs against group litigants imposes on each group litigant several liability for an equal proportion of those common costs.
(4) The general rule is that where a group litigant is the paying party, he will, in addition to any costs he is liable to pay to the receiving party, be liable for -
(a) the individual costs of his claim; and
(b) an equal proportion, together with all the other group litigants, of the common costs.
(5) Where the court makes an order about costs in relation to any application or hearing which involved -
(a) one or more GLO issues; and
(b) issues relevant only to individual claims,
the court will direct the proportion of the costs that is to relate to common costs and the proportion that is to relate to individual costs.
(6) Where common costs have been incurred before a claim is entered on the group register, the court may order the group litigant to be liable for a proportion of those costs.
(7) Where a claim is removed from the group register, the court may make an order for costs in that claim which includes a proportion of the common costs incurred up to the date on which the claim is removed from the group register. (Part 19 sets out rules about group litigation.)"
"The Management Court may give directions about how the costs of resolving common issues or the costs of claims proceeding as test claims are to be borne or shared as between the Claimants on the group register."
"Mr Birts QC . . . said that this paragraph of the order had been included (after argument) because the Claimant's realised that they had not claimed generic costs in the individual bills. It was not regarded by the Claimants as a finding or a declaration by the District Judge but the Claimants were entitled to generic costs."
"Of the 50 claims settled by the Society's acceptance of a payment into court, the Society became entitled, under RSC Order 62, Rule 5(4) to payment of its "costs of the action incurred up to the time of giving notice of acceptance". Because the rule draws no distinction between generic and other costs, the Society thereby became entitled to its generic costs attributable to those claims."
"We enclose a copy of the bill relating to the generic costs of work of which the lead Claimants have had the benefit.
However, we have now had the opportunity to consider the issue of generic costs at some length and we have taken advice from others more experienced in the issue of generic costs than ourselves
We are of the opinion that this bill should be used for illustrative purposes only at this stage. While it is true that this bill is accurate in terms of the Burroughs Day costs that have been incurred in relation to generic issues, we are conscious that the lead Claimants have also had the benefit of work carried out by other members of the Steering Committee and likewise the Claimants represented by the other Steering Committee firms have also benefited from work done by Burroughs Day. An example of this is that Irwin Mitchell and Raleys have been attending the negotiating meetings with your Mr Marsden from which all Claimants have benefited.
We therefore suggest that this bill be used for illustrative purposes and to enable the Court to come to a decision as to whether the Steering Committee firms and, in this action specifically, Burroughs Day are entitled to generic costs. The calculation of such costs should, in our opinion, then be left to the conclusion of the litigation as a whole."
"We consider that we have made our opinion known in relation to generic costs and reiterate that it is not possible to attach a proportion of the generic bill to any individual Claimant as to do so would be artificial. We state again that each client of each Steering Committee firm has benefited from work carried out by each member firm and therefore to attach Burroughs Day costs only to Burroughs Day clients would be incorrect."