England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL Friday 9th February 2001

LORD JUSTICE JUDGE:

1. This is an appeal by Ingham Clegg and Crowther (ICC) a firm of solicitors in practice in the North West of England, from the order of Penry-Davey J dated 28th May 1999 that they should deliver up to the British Cycling Federation (BCF) files they then held which related to actual or potential claims for damages for personal injuries by members of the Federation. BCF is an unincorporated association. The claimants, Michael Cookson and William Tarran, sued the solicitors on their own behalf and, subject to specified exceptions, on behalf of all other members of the Association.
2. At the same time as he made the order now under appeal Penry-Davey J dismissed a counter claim by the solicitors for damages for breach of contract, a dispute which arose out of the terms of their original retainer by BCF, and its termination. That decision, and the issues arising from the counter claim, are not in issue before us.
3. The essential facts can be briefly summarised.
4. During the summer of 1995 BCF invited tenders from solicitors interested in a broad retainer to act for any of its members who were involved in road traffic accidents. The intention (subsequently implemented) was that BCF should purchase a legal expenses insurance policy "on behalf of its members", and that rather than charge BCF or the individual members, the solicitors should be remunerated for any fees and disbursements under this policy. The relevant contract was executed in December 1995 and back dated to 1st October. The retainer was determined on 17th March 1997.
5. In this appeal the question in dispute is whether BCF was entitled to require delivery up to it of files relating to claims by individual members then in the possession of ICC, or whether ICC were entitled, indeed obliged, to refuse such delivery unless and until authorised to do so by the individual members themselves. Indeed the issue can be even more narrowly defined because by the date of Penry-Davey J's judgment, some of the files had been handed over by ICC at the request of the members, in other cases, the members expressly instructed ICC to continue to act for them, so they retained the files, and no question of delivery to BCF arises for decision, and in yet other cases, the relevant litigation had been concluded. In reality therefore the dispute concerned the files of individual members involved in pending litigation, or contemplating litigation, which had been opened or created for individual members of BCF by ICC under the contract dated 1 October 1995, when the individual member himself or herself had not expressed any view, or been invited to express one, or given any direct instruction whether his or her claim should continue to be conducted by ICC.
6. To resolve the dispute, three distinct relationships need analysis: first, and crucially, the terms governing membership of BCF, and in particular the legal advice and assistance scheme provided for members: second, the relationship between BCF and ICC: and, third, the relationship between ICC and each individual member of BCF referred to ICC in accordance with the scheme.
7. The 1995 BCF Members Handbook explains precisely what each member involved in a road traffic accident could expect as a benefit of membership:

"Legal advice and assistance.

If you are involved in an accident which is not your fault, the Federation will advise you as to the best course of action.

You should telephone or write to BCF Headquarters and ask for a Legal Advice Folder. You will be sent a folder with instructions for its completion and return to Headquarters. Upon receipt, our Claims Officer will study the folder and advise you as to the appropriate course of action. This service is a benefit of membership, and is provided without charge to all members.

If the accident occurred in the United Kingdom...... and the person, persons or organisation against whom the claim is to be brought can be identified, we will, if so instructed, pursue a claim on your behalf. If it was necessary that a solicitor should deal with your claim, we would advise you accordingly. Upon receipt of your instruction to take this course of action, the file would be passed to a solicitor from our panel. We would meet any unrecoverable costs that the solicitor incurred, providing the amount recovered for the member is less than £75,000........

If a claim has to be brought against an untraced motorist there are special conditions which apply. These will be fully explained before any action is taken on your behalf......

We will advise members in respect of accidents while they are abroad. We do not, however, pursue claims in respect of accidents abroad."

8. In effect therefore, on receipt of a request by a member, the claims officer at BCF headquarters would offer advice to the member, as a benefit of membership, without charge. If so instructed, BCF (my emphasis) would pursue the claim on behalf of the member, and if the services of a solicitor were required, after advising the member, the file would be passed to the solicitor nominated by BCF, which would, unless the sums recovered exceed £75,000, meet any unrecoverable costs.
9. The 1996 Handbook altered the procedure, without affecting the essential conditions:

"If you are involved in a car ..... accident which is not your fault contact the Legal and Insurance Helpline. We will take all your details over the phone and begin acting for you straight away...... We will advise members and take action in appropriate cases for any type of accident, such as accidents at work etc. Although we give advice in respect of accident abroad we do not actively pursue them."

10. The starting point remained contact between the individual member and BCF, which would "straight away" act on his behalf. No direct contact or communication between the member and the solicitor was envisaged in either the 1995 or 1996 Handbooks, until either BCF had itself notified the solicitors of the possible claim by a member, or, from 1996, the member had contacted BCF's helpline and been provided with a claim form for completion and onward transmission to the solicitors identified on it. Despite the slight variation of language, the difference between the assassin that in 1995 BCF was "pursuing" the claim, and in 1996, acting "straight away" for the member, is irrelevant. Obviously no member was obliged to use any of these services offered by BCF, or take advantage of this particular benefit of membership, or indeed to contact BCF's nominated solicitors. If however the member wished to partake in the scheme, the invariable starting point was BCF itself which then had a continuing responsibility to each individual member for its proper implementation and organisation.
11. On 12th September 1995 ICC responded to the invitation by BCF to tender for the provision of legal advice and assistance. After a tender application, a formal presentation was made to the Board of BCF on 16th September.
12. The tender application included the following proposals:

"Ingham Clegg and Crowther shall agree to abide by any mutually agreed form of reviewing procedure of claim handling which BCF may feel is necessary and in the best interest of its members."

"All claims received at BCF HQ should be forwarded onto Ingham Clegg & Crowther immediately whereupon the member shall be contacted by one of our specialist cycle claims handlers in order that proceedings may be carried out expeditiously."

"As in the current arrangement.... Ingham Clegg & Crowther shall use specially printed forms so as to indicate clearly to the member that Ingham Clegg & Crowther act as legal representatives for the BCF."

13. The tender also provided that ICC would offer to employ a Mr Roundthwaite, who was then working for BCF, as an articled clerk, to provide a measure of liaison.
14. After the formal presentation on 16th September, and subsequent discussion between Board members, Mr Vincent, of ICC, was informed that ICC's proposal was accepted. For new members the scheme would take effect from 1st October, and a "total transfer of the relevant Federation business" would take place on 1st January 1996.
15. The agreement dated 1st October 1995 was straightforward, incorporating the terms governing the relationship between BCF and ICC. In summary, ICC agreed to provide members of the BCF with legal advice and representation, without charging BCF or any member in relation to claims brought on behalf of members who were regarded by the solicitors as having reasonable prospects of success. Thereafter the solicitors described themselves as solicitors to the BCF. That logo appeared on their letters, consistently with the terms of their original tender that they should act as legal representatives for BCF. In my view a solicitor/client relationship was established (s87(1) of the Solicitors' Act 1974).
16. ICC subsequently agreed that to improve communication and reporting, "a full review meeting should take place each month" between them, and that BCF would be provided "with full details of the claims handling procedure including how queries on on-going cases would be handled". Shortly afterwards it was anticipated that there should be a "quarterly review of random files" carried out by BCF, and that caseload review reports "should be sent to BCF every two months". In effect therefore, these were practical manifestations of the arrangement that BCF should continue to maintain a supervisory oversight of the performance of ICC on behalf of its members.
17. On occasions, no doubt in compliance with these arrangements, ICC provided information to BCF about the progress of claims, and so far as I can ascertain, did so without first seeking the specific prior authority of the member whose claim was under consideration.
18. Without minimising its importance, the third relationship, namely that made between each individual member and ICC, needs very brief mention, simply because there is no doubt that a separate and distinct solicitor/client relationship existed between ICC and each member of BCF for whom it was acting.
19. There are many examples of letters from ICC to members acknowledging that they had been instructed to act on the members' behalf by BCF. The earliest specimen letter includes the following passage:

"We have been instructed by British Cycling Federation to act on your behalf in connection with your recent road traffic accident and have been supplied with a copy of your completed accident report form."

20. Later, the client letter thanked the individual member for his "instructions to deal with the above claim on your behalf ......... As a valued member of the British Cycling Federation, we intend to provide you with a quality service and achieve an efficient and early resolution to your case."
21. Simultaneously, an appropriate letter of acknowledgement was sent to the BCF itself. BCF was thanked for its "kind instructions". Once the scheme had developed so that the member completed a claim form, a copy was sent to BCF for its records. ICC undertook to keep BCF "advised of developments".
22. Unfortunately BCF was dissatisfied with the service provided for its members by ICC. On 17th March 1997, the agreement was terminated by BCF when, as Penry-Davey J found, this was justified by reason of a repudiatory breach by ICC. The letter reads:

"BCF terminates forthwith its arrangement whereby cases for and on behalf of its members are handled by your firm..... You will be required to transfer forthwith to this firm all existing cases where you are purporting to act for the BCF and for its members.... Failure to provide us with a comprehensive list will inevitably mean that BCF will commence proceedings against your firm for the delivery up of the files and papers in your possession .... We are sure that you will agree that the interest of the BCF and its members are paramount, particularly in relation to the transfer of these files."

23. It is an important feature of the facts of this particular case that on the findings made by the judge, BCF were justifiably dissatisfied with ICC's performance as their nominated solicitors, and therefore also, for their work done as solicitors acting for the members who were supposed to be the beneficiaries of the Legal Advice and Assistance Scheme. On the judge's findings BCF was entitled to terminate the agreement with ICC for repudiatory breach of contract, and, in the interests of their members and to fulfil their commitment to providing legal advice and assistance as a benefit of membership, to replace them by selecting new solicitors. In fact, none of the individual members for whom ICC had been acting, was consulted when the demand for the "transfer" of the files was made.
24. The response, from ICC, dated 19th March, noted the "statement that the contract between this firm and BCF is terminated", estimated the damages to be paid by ICC for BCF's breach of contract to be in excess of £500,000, and adding "it is not for BCF nor therefore you to demand the transfer of files or other information relating to individual cases we are currently handling pursuant to the agreement. Our client in each individual case is a member of BCF concerned and any instruction must come from him or her".
25. It is unfortunate that BCF, and their new solicitors, or ICC, overlooked the very simple course which any of them could have taken, or perhaps better, should have been taken jointly, which would have readily resolved at least this part of the dispute. A short letter could very readily have been prepared and sent to every member of BCF who was a client of ICC, to explain the change, and ask whether the member wished to continue within the BCF scheme (which would involve a change of solicitors) or continue as a client of ICC (in which event, they would then fall outside the BCF scheme, and therefore would no longer be supported). For the member who opted to remain as a client of ICC, almost certainly a fresh (second) retainer would have been required.
26. Having analysed the facts, Penry-Davey J expressed his conclusion on the issue before us very briefly. He recorded the submission on behalf of ICC "that BCF was not the client in relation to litigation involving an individual member and that its role was simply as referrer". He concluded that "it is clear ..... that BCF were not simply referrers and were a client of the defendant. They retained the defendant to act and were entitled, on termination of the defendant's retainer and subject to any lien, to call for and require delivery up files from the defendant".
27. The starting point of Mr Bannister QC's submission on appeal was that once they had started to act on behalf of an individual member of BCF, ICC's relationship with him or her became that of solicitor and client. It is difficult to see any answer to that proposition, and none was offered. The next and crucial stage of the argument is however more difficult. It is, in effect, that the termination of the agreement between BCF and ICC did not bring to an end the solicitor/client relationship between ICC and the individual member. BCF did not have any right unilaterally to interfere with that relationship. Therefore BCF was not entitled to seek or be granted delivery up of the relevant files without the express authority of the member. Without that authority the files were subject to the ordinary principle of client confidentiality, and ICC were not entitled to sever their professional relationship with their client merely because BCF terminated ICC's retainer as the nominated solicitor.
28. Although counsel drew attention to a number of authorities referred to in the judgment of Mance LJ they did not seem to me to advance the argument in this case any further, and without discourtesy to counsel, it is sufficient for me to say that having read Mance LJ's analysis of the authorities, I agree with it.
29. My difficulty with Mr Bannister's submission is that it does not sufficiently focus either on the terms of the solicitor/client relationship agreed between BCF and ICC, and no less important, on the nature of the relationship between BCF and its individual members, and in particular that the arrangements by which individual members of BCF became clients of ICC derived from and was dependant on the conditions of their membership of BCF. The referral of an individual case to ICC did not alter either the basis of membership of BCF nor indeed serve to bring to an end the solicitor/client relationship that existed between BCF and ICC. In effect, while that retainer subsisted, the solicitors owed professional duties simultaneously both to BCF and the individual members for whom it was instructed to act by BCF. In the meantime BCF was similarly responsible to its members for the operation of the legal advice and assistance scheme. These relationships were therefore all inter-linked.
30. During the subsistence of the agreement between BCF and ICC any individual member of BCF was entitled to bring his own relationship with the solicitor to an end, but if he chose to do so, he could not then rely on his membership of BCF to provide funds, or indeed any other form of support, to enable another solicitor to be instructed. Similarly, once ICC's retainer was justifiably terminated by BCF, any member who wished the professional relationship of solicitor/client to continue between him and ICC was, of course, free to continue it, not however on the basis of his membership of BCF, but on the basis of new arrangements for fee paying and so on to be agreed with the solicitors. In this event, BCF would not have been entitled to delivery up of the relevant file. If not however, for as long as the member wished to continue to participate in BCF's scheme for legal advice and assistance, he was entitled to do so, subject to whatever new arrangements replaced those originally agreed with ICC, including the selection and retainer by BCF of new solicitors to act in place of ICC on behalf of members.
31. In my judgment the correct analysis of the three relationships under consideration in this appeal leads to the conclusion that BCF, with their agreement, was responsible to all its members for the operation of the legal advice and assistance scheme, both those who had started claims, or sought advice about them, as well as those who had not yet required to take advantage of it. For this purpose, members authorised BCF to pursue their claims, or to act for them. The instruction of solicitors formed part of the process, but did not bring BCF's authority to an end. Rather it represented one aspect of its continuing responsibilities to its members and the pursuit of each claim. This explains why ICC undertook to advise BCF about developments in each individual case, and BCF was entitled to review the files in the possession of ICC generally, and indeed any individual file, and if appropriate, to terminate its own solicitor/client relationship with ICC.
32. In the circumstances of this case, once BCF, in the reasonable exercise of the authority, if not expressly, certainly impliedly vested in it by each member, concluded that the retainer of the solicitors as nominated solicitors should be terminated, and that they should be replaced, in my judgment the effect was to bring to an end not only its own agreement with ICC but also, the solicitor/client relationship which subsisted between individual members who had become clients of ICC through the operation of the scheme, and ICC. In my judgment also, the entitlement to the delivery of the files followed from the lawful termination of the retainer and similarly fell within the scope of the authority vested in BCF to act on behalf of its members.
33. An issue raised in argument was whether, assuming BCF was entitled to terminate the existing solicitor/client relationship between each member and ICC, it was entitled to demand immediate delivery of the relevant files for the purpose of instructing another solicitor. The issue was not argued before Penry-Davey J, nor fully developed before us, and it is sufficient for me to indicate as a preliminary view on this particular point, that it would be reasonable to infer that members who were pursuing a claim within the BCF scheme would, in the absence of any contrary indication, have elected that their claims should continue to be pursued within the scheme rather than outside it. Once ICC ceased to be the nominated solicitors, the reasonable inference would be that the client would wish his claim to be pursued by BCF through its new solicitors, and for that purpose, those new solicitors would need his files. As a matter of practical common sense, ICC could, of course, have asked their former clients to express their preference before returning the files, and in any appropriate case, to start a fresh client/solicitor relationship. Unfortunately, that did not happen.
34. In my judgment this appeal should be dismissed.

LORD JUSTICE MANCE:

35. I have had the benefit of reading the judgment of Lord Justice Judge in draft. I can gratefully adopt his summary of the facts, and I agree with his reasoning and conclusions.
36. The arrangements that were devised between British Cycling Federation ("BCF") and Ingham Clegg and Crowther ("ICC") for "legal advice and assistance" to members of BCF were not, I think, thought through adequately. In saying this, I am conscious that we do not have the full picture, since the legal expenses insurance policy placed by BCF through the intermediary of Alpha Insurance Consultants Limited with (at least from October 1996 – see appeal bundle page 182) Lloyd's underwriters is not before us. We do however know that, according to BCF's agreement with ICC dated 1^st October 1995, the legal expenses policy was to be taken out by BCF "on behalf of its members".
37. There is, it seems to me, also a question-mark over the proceedings as they have been constituted, although no relevance was attached to this before us or below. Under the writ issued on 23^rd May 1997 the two named claimants, Messrs. Cookson and Tarran, purport to sue "for and on behalf of the British Cycling Federation an unincorporated Association on behalf of themselves and all members of the Association". The proceedings are thus in form representative proceedings. But that could only be appropriate if all the members of BCF had "the same interest in the proceedings": see RSC O.15 r.12 and Chitty on Contracts (28^th ed.) Vol. 1 paras. 9-070 to 9-075. If that were the position, then it might be difficult to see what objection ICC could have to delivering up the files that were undoubtedly demanded from it by BCF (by its new board or committee of management of which the named claimants, Messrs. Cookson and Tarrant, were, presumably, part) on 17^th March 1997. For reasons relating to both the structure of arrangements that were established and the nature of the issues before us, it seems to me most improbable however that all the members of BCF do have a common interest.
38. The whole litigation has been conducted on a basis treating BCF as separate from its members, and (in particular) identifying the possibility that individual members might, if asked, have wished to retain the services of ICC, rather than go to the new solicitors (Edward Lewis) engaged by BCF's new management in March 1997. Further, as will appear, it is clear that BCF through its board or committee of management entered into arrangements with its own members, with ICC and with insurers on its own behalf and, in very material respects, not as agents for its members. It also seems to me clear that it would not have had any authority to enter into many of such arrangements as agents for its members. Thus, the membership arrangements between BCF and its members must take effect as a contract between the board or committee of BCF and its members: see Chitty on Contracts (28^th ed) Vol. 1 paras. 9-069 and 9-078. The contract dated 1^st October 1995 between BCF and ICC is thus a contract between the board or BCF (not every member of BCF) and ICC. The insurance placed by BCF involves a contract between the board of BCF and insurers – although in this case the fact that it purports to cover the insurable interests of individual members might (despite possible problems about authority and consideration) encourage an analysis whereby all individual members were treated as party to that limited extent (see further below).
39. Since the case has been conducted as if the proceedings were not representative proceedings at all, but were proceedings begun in the normal course by BCF's board or committee, and since that seems to me to reflect the reality of the arrangements entered into, I shall in what follows simply ignore the representative form of the proceedings.
40. I turn to certain aspects of the overall picture that are reasonably clear. Individual members paid BCF subscriptions. A major inducement to become a member of BCF in the mid-1990s was its legal advice and assistance scheme. Judge LJ has set out in his judgment the relevant passages in BCF's 1995 and 1996 Members Handbooks that delineate, under the heading of "Members Benefits", the nature and scope of the scheme. As offered to and agreed with BCF members, it was a "service" to be provided by BCF. It was expressly limited to involvement in any accident which was not the members' fault. BCF was, under the 1995 description, "if so instructed, to pursue a claim on your behalf", to advise if it was necessary to instruct solicitors and, upon receipt of instructions to take this course to pass the file "to a solicitor from our panel". BCF was also to "meet any unrecoverable costs that the solicitor incurred, provided the amount recovered for the member is less than £75,000". Under the 1996 description, BCF was, on receipt of details of an accident, to "begin acting for you straight away", and to "advise members and take action in appropriate cases for any type of accident …", with the qualification that "Although we give advice in relation to accidents abroad, we do not actively pursue them". "The service" thus "open" to BCF members resident in the UK was again expressly "free unless £75,000 or more was recovered in compensation, in which case you may be asked for a contribution towards legal costs". The 1996 Handbook also referred to the BCF Legal and Insurance Helpline, which, from the papers, appears (at least until September 1996 – see appeal bundle page 170) to have given members direct access to ICC.
41. A notable feature of the Handbook descriptions is that they do not identify the mechanism by which BCF and any solicitors it instructed were to act free of charge, at least unless and until a recovery of £75,000 was made. The mechanism was in fact a legal expenses insurance to be placed by BCF. But BCF held out the service as its own. And so it was, in important respects. Out of its funds, deriving no doubt from members' subscriptions, BCF arranged not a series of individual policies, but a block policy relating to its whole membership for a block premium (of, it seems, £59,500 for the first two years).
42. Further, by clause 1 of the agreement dated 1^st October 1995, BCF agreed with ICC that ICC should provide its members with legal advice and representation arising from any cycle or motor vehicle accident, provided that ICC "conclude that the Member has reasonable prospects of success". In parenthesis, this is not a qualification that appeared in terms in either Handbook, but, in the event of a member wishing to pursue a claim that ICC concluded had no reasonable prospect of success, BCF would probably have been able to say that its own obligation to pursue a claim and (under the 1995 Handbook) to instruct a solicitor "if necessary" or (under the 1996 Handbook) to "take action in appropriate cases" was necessarily limited to claims offering a reasonable prospect of success.
43. Clause 2 of the agreement of 1^st October 1995 provided:

"in consideration of the The Federation purchasing from Alpha Legal Expenses Insurers their Cycle Legal Expenses Policy …. on behalf of its Members …. The Firm shall not charge The Federation or any of its Members any legal fees or disbursements as a result of work carried out on behalf of The Member of The Federation in relation to any of the claims set out in clause one above but shall in appropriate cases claim such fees and disbursements under the terms of the Alpha Legal Expenses Policy which The Federation has agreed to put into force."

44. How this was to work could have merited more thought. ICC was not on any view a party to, or insured under the legal expenses insurance. BCF was (probably) a party to it, since it took it out as a block policy, but it seems unlikely that the insurance was intended to cover any insurable interest that BCF itself may have had. First, BCF took the policy out on behalf of its members, and (if – which is unclear – the insurance covered costs which might in the course of successful litigation be ordered to be paid to the other party at fault) BCF would not (normally) have been ordered to meet such costs. Second, as to costs incurred by ICC on behalf of a member, clause 2 of the agreement of 1^st October 1995 expressly prevented BCF incurring any liability for such costs to ICC. Presumably, therefore, the insurable interests purportedly insured under the Legal Expenses Policy were the interests that individual BCF members might normally be expected to have in any costs incurred or ordered (or agreed) to be borne by them in consequence of the pursuit (or it may be defence) of any claim relating to any accident which was not their fault. Assuming that individual members can to that extent be taken to have become party to the policy (as opposed to simply intended third party beneficiaries of the insurance cover), it is clear that they cannot have been party for all or general purposes. They cannot have been liable for premium, or entitled to cancel or vary the terms of the policy. The policy was in such respects BCF's contract with insurers. The arrangements between BCF and its members described in the Handbooks also made clear that legal advice and assistance was to be provided free to a member, at least up to a recovery of £75,000. So it is difficult to see how any member could claim that his potential insurable interest ever actually attached in respect of any actual liability for costs, or that he or she incurred any actual loss entitling recovery from insurers. In practice, responsible insurers would not ordinarily take so technical an attitude, and claims to recover costs for ICC's benefit were probably made and paid by insurers.
45. The description that I have given of the scheme demonstrates that BCF fulfilled an important role in its own right - in relation to individual members, in relation to ICC and in relation to insurers. The appeal was both brought and argued before us on the basis that, although the order challenged was for delivery up of the files, the decisive issue in determining that challenge was whether or not BCF was entitled to determine ICC's engagement not merely under the agreement dated 1^st October 1995 entered into with BCF, but at the same time as solicitors acting in relation to individual members who had made claims to legal advice and assistance under the "service" provided for members by BCF. As Judge LJ has said, it was only during the course of exchanges with the court, and by the court, that a further possibility was mooted, namely that even if BCF was so entitled, it might still not also be entitled to receive individual members' files without informing individual members of and/or getting their approval to the proposed move to new solicitors. We were not in the circumstances given the benefit of argument, or citation of any authority on this point.
46. On the judge's findings, not in issue before us, BCF was entitled to treat itself as relieved from any further obligation of performance in relation to its agreement dated 1^st October 1995 with ICC. First, that agreement was terminable at any time by notice with immediate effect. Second, ICC committed repudiatory breaches of it, which anyway entitled BCF to determine it with immediate effect.
47. That being so, was BCF at the same time entitled to determine ICC's instructions to act on particular claims for individual members of BCF? On the facts of this case, I consider that it was. The salient factors are that BCF held itself out to its members as providing the legal advice and assistance service. It also had the responsibility at all times of selecting solicitors (although under the 1995, as distinct from 1996 Handbook, this was only to occur after express instructions to take such a course). BCF undertook to its members that it would, by some undefined route or another, meet or provide for costs (except in case of a recovery reaching £75,000). Such a scheme, which placed substantial responsibility and potential exposure on BCF, could only work if BCF remained satisfied with and content to use the services of the solicitor who it had selected. A member could not realistically expect to continue to receive the benefits of BCF's legal advice and assistance service, without using solicitors instructed by BCF to provide that service. BCF could not realistically be expected to provide the benefits, through a solicitor who it considered incompetent or inappropriate. It may be suggested that BCF would not actually be incurring any responsibility to meet such a solicitor's costs, if a member wished to continue to us that solicitor's services, and (perhaps, though this depends on the terms of the insurance which are not available) that such costs might then still be recoverable by the member under the legal expenses insurance arranged through Alpha. But the Handbooks said nothing at all about any such legal expenses insurance; and it is clear from the Handbooks, and confirmed by the correspondence and statements in the bundles as well as the judge's findings, that individual members would look to BCF and hold it as well as ICC responsible for any failings in the legal service provided.
48. It seems to me that in these circumstances the only sensible inference of the scheme outlined in the Handbooks is that individual members gave BCF authority not merely to make the initial selection of solicitors to act, but also to monitor and replace such solicitors to act on their behalf in any claim, if and as necessary. The issue is not who were ICC's clients. The individual members clearly were. So too were BCF, I would, if necessary, have thought: see Solicitors Act 1974 s.87(1). The real issue is the scope of the authority conferred by individual members upon the board or committee of BCF in relation to the instructing and replacing of solicitors to advise and represent individual members under the scheme set out in the Handbooks.
49. Mr Bannister for ICC referred us to the authorities of Adams v. London Motor Builders[1921] 1 KB 495, Davies v. Taylor (No. 2) [1974] AC 225, Groom v. Crocker [1938] 1 KB 194 and re Crocker [1936] 1 Ch. 696. The first two cases show merely that, where solicitors are instructed by an union or by insurers to act for a party in litigation, the party may himself be – indeed normally will be – liable to the solicitors for costs, and such liability will not be excluded by reason of the fact that the union or insurers may also undertake liability for the solicitors' costs. Firstly, that does not assist on any issue, whether the union or insurers (or here BCF) may at any time replace the solicitors. Secondly, for completeness, the present case, as Penry-Davey J. held, is one where individual members probably did not incur any liability for costs to their own solicitors, because of the legal advice and assistance scheme was, as far as they were concerned, free (up to a recovery of £75,000) under the terms in the Handbooks.
50. Groom v. Crocker is also concerned with a situation distinct from the present. The insurers had under the relevant liability policy insuring Mr Groom "absolute conduct and control of all and any proceedings against the insured". But they used their position, in conjunction with the solicitors who they instructed (Messrs. Crocker), to obtain for themselves a collateral benefit in relation to quite different proceedings involving another insured which had nothing to do with, or with the merits of, the proceedings against their present insured, Mr Groom. That was a breach of Messrs. Crocker's (as well as insurers') duties to Mr Groom. The judgments emphasise the relationship of solicitor and client which came into existence between Mr. Groom and Messrs. Crocker, once the latter were instructed to act by insurers. But they also emphasise that that relationship is "subject to any proper exercise by the insurers of the right of control conferred upon them by the policy" (per Sir Wilfred Greene MR at page 205). As Sir Wilfred Greene put in at page 203:

"The assured in my opinion is not entitled to complain of anything done by the solicitor upon the instructions, express or implied, of the insurers, provided it falls within the class of things which the insurers are, as between themselves and the assured, entitled to do under the terms of the policy when properly construed."

51. Scott LJ said at page 224:

"The policy conferred upon them [the insurers] no right to call upon [Messrs. Crocker] to act on their mandate, and [Messrs. Crocker] derived no authority from it to do what they did. The consequences are plain. [Messrs. Crocker] were acting from first to last in breach of their contractual duty to [Mr Groom]. First, they were repudiating the very existence of the relationship of solicitor and client between themselves and [Mr Groom] which was constituted by the nomination of the society [i.e. the insurers]; secondly, they were acting on orders which the society had no right to give, and taking action with which they knew their client did not agree; and, thirdly, they did not inform him, or consult with him, or give him the opportunity to challenge the right of the society to give the instructions they had given, or, if need be, to intervene and conduct the defence of the case himself at his own expense."

52. These statements were all made in the context of a case where no question arose of the insurers seeking to use other solicitors. The whole issue arose because the solicitors continued to purport to represent the client in implementing instructions from insurers which were outside the scope of any proper exercise of the insurers' authority and in not informing the client of insurers' illegitimate plan. The statements say nothing on an issue whether the insurers could, if dissatisfied with Messrs. Crocker's ability to conduct Mr Groom's case, have replaced Messrs. Crocker with other solicitors. That issue did not arise. Contrary to Mr Bannister's submission, I would have thought it clear, that if that had been the issue, then the "absolute conduct and control of all and any proceedings against the assured" conferred under the policy in Groom v. Crocker would have included a power to change solicitors, as long as exercised in Mr Groom's interests.
53. Finally, in re Crocker Clauson J. held that Mr Groom was, as client, entitled to see the files held by Messrs. Crocker, as his solicitors. It is to be noted that the claim was not for delivery up of the documents, and Clauson J. expressed the view, at page 702, that there "might be a very good reason for maintaining the present custody of the documents in the hands of the solicitors", namely that "having regard to the obligations what the insurance company have undertaken to [Mr Groom], they may have an interest in the matter, and it may be that, if any question arises with regard to the rights under the policy as between themselves and [Mr Groom], they may desire to have access to those documents which [Mr Groom] desires to see". Again, that says nothing about the possibility that the insurers might have decided to replace the solicitors and to transfer the files to the new solicitors.
54. I therefore consider that the authority of BCF's board or committee in relation to claims where BCF was providing its legal advice and assistance service extended to include power to change the solicitors acting under the scheme, where (as here) this was reasonably regarded as necessary in the interests of the proper conduct of the scheme and of members' claims under the scheme.
55. I turn to the further point touched on in the course of argument before us, namely that, even if BCF was entitled (as I consider) to determine ICC's authority to act for individual members of BCF with a view to replacing ICC with new solicitors engaged to operate its legal advice and assistance scheme, still it was not entitled to call for delivery up of any individual member's file without first giving such member notice and the opportunity to continue to use the services of ICC. It was pointed out in this connection that it was always open to individual members to engage ICC (or any other solicitors) outside the scope of BCF's scheme. I would add, that, without seeing the terms of the legal expenses insurance that BCF arranged, I do not think that one can or should exclude the possibility that in that event an individual member or ICC might still have been able to obtain payments of expenses under that policy for ICC's benefit. Nevertheless, it would seems to me as presently advised that, if (as I consider) BCF was entitled to dismiss solicitors and appoint other solicitors to act under its legal advice and assistance scheme, then, as soon as it took this step, it was also entitled to delivery up of the relevant files, in order to be able to transfer them to another solicitor. Even if BCF did not inform its individual members prior to or on the change, that other solicitor would contact the individual member, just as ICC did when originally instructed. The individual member could then, if he thought fit, decline to continue within the scheme, and could make its own arrangements to revert to ICC or go elsewhere. I see the practical force of the suggestion that BCF should have given individual members for whom ICC was acting the opportunity to choose whether or not to make their own arrangements to continue with ICC, before actually demanding delivery up of their files. But these were members who were all using and relying on BCF's free legal advice and assistance scheme. An agent may in some circumstances be obliged to keep his principal informed before undertaking a major change in policy in the course of his agency (cf e.g. Poland v. Praet [1960] 1 Ll.L.R. 420, 441, per Pearson J.; aff'd [1961] 1 Ll.R. 187, although this was not cited before us and we heard no argument on the point). Even so, I find it more difficult to see here to see that it can have been a condition of BCF's right to change solicitors, and for that purpose to seek delivery up of files, under BCF's own scheme, that BCF should first have given individual members the right to cease to use the scheme and to make other arrangements to receive representation and advice. The third consequence mentioned in the passage cited above from Scott LJ's judgment was directed to the solicitors' breach of duty in failing to inform their clients about actual or proposed misconduct by their clients' insurers. It does not help on the present issue – which is whether BCF was entitled to act as it did. In these circumstances, and particularly in view of the basis on which the appeal was brought and the late and limited way in which this point was only briefly touched upon before us, I do not consider that we would be justified in treating this point as involving any fundamental objection to the judge's order.
56. For all these reasons, therefore, I too would dismiss this appeal.

SIR ANTHONY EVANS:

57. I agree with both judgments that BCF was entitled to terminate not only the solicitor/client relationship between it and the Appellants ("ICC"), but also the same relationship which its instructions to ICC had brought into being between ICC and the individual members on whose behalf BCF was acting.
58. The terms of the agreement between BCF and its members did not include such an express statement of this power as was present in the insurance policy in Groom v Crocker [1938] 1 KB 194, where the insurer who instructed solicitors on the insured's behalf were given "absolute conduct and control of all and any proceedings against the insured". But the conclusion is inescapable that in the circumstances of the present case the BCF had authority to terminate both aspects of ICC's retainer, by the members as individuals as well as the retainer by BCF.
59. I am not convinced, however, that the new solicitors instructed by BCF were entitled to demand delivery up of ICC's files relating to individual members' cases, without first giving the member concerned the opportunity to elect whether to retain ICC afresh on his own behalf. If any member wished to take this course, he could well object to his case files being transferred even temporarily to another firm whom he had not instructed nor wished BCF to instruct on his behalf.
60. As matter of legal analysis, it seems to me that this requirement of notice to the member should be implied as a term of the authority given by him to BCF. This analysis is supported by what Scott LJ said in his judgment in Groom v Crocker quoted by Mance LJ.
61. But this does not lead to the conclusion that the present appeal should be allowed. The relevant claim for relief was framed as a claim for delivery up of the files. This appears to have been regarded throughout as synonymous with a claim for a declaration that the solicitor/client relationships between ICC and individual members was terminated, as BCF alleged that it was. The respondents were entitled to a declaration to that effect, and in my judgment the appellant cannot object to the terms of the Judge's Order now.
62. The issue in this appeal is the result of an unseemly and unnecessary dispute. When this particular dispute arose between ICC and the new solicitors instructed by BCF, it would have been easy for ICC to notify the individual members who were their clients of the contentions being made by or on behalf of ICC. Similarly, the solicitors newly-instructed by BCF, who sought to begin acting on behalf of the individual members, could have suggested a joint notice from themselves and ICC, and possibly contacted some or all of them direct with the assistance of BCF.
63. None of this was done. The individual members' interests appear to have been disregarded by both firms. A futile dispute arose as to who should take the initiative and what the parties' respective rights and obligations were, in cases where the members' wishes were not known.
64. This was only one among many issues, but the costs incurred in relation to it apparently were regarded as sufficient to justify bringing the present appeal.
65. In my view, the issue should not have been litigated.
Order: Appeal dismissed with costs. (This order does not form part of approved judgment)