Lord Justice Lewison:
1.
Where a party to litigation is entitled to have his costs assessed, the
court will not allow costs "which have been unreasonably incurred or are
unreasonable in amount." Where the assessment takes place on the standard
basis, any doubt is resolved in favour of the paying party: CPR Part 44.4 (1)
and (2). In deciding whether costs have been proportionately and reasonably
incurred the court must "have regard to all the circumstances of the case": CPR
Part 44.5 (1).
2.
The issue raised on these appeals from Foskett J (sitting with Senior
Costs Judge Gordon-Saker as assessor) is the approach that the court should
take in deciding whether costs are reasonable or unreasonable in a case where,
after liability has been admitted, the funding of the claim changes (at the
client's request) from funding by legal aid to funding under a conditional fee
agreement (a "CFA") supplemented by a self-funding after the event insurance
policy ("ATE insurance"). The judge's judgment is at [2016] EWHC 1598 (QB);
[2018] 1 WLR 499. Since all these appeals are second appeals, our primary focus
must be on the decisions at first instance.
3.
Each of the three cases under consideration involves claims for clinical
negligence resulting in very serious injury. In the Surrey case the
claimant suffered very serious brain damage at birth. In the AH case the
adult claimant also suffered devastating brain injury as a result of strokes, as
well as becoming blind and paralysed. In the Yesil case the claimant was
born with very serious mental and physical disabilities. The details of the
individual cases do not bear on the legal issue, save to the extent that the
quantum of damages recoverable in each case was likely to be very large if
liability were established. Further factual details about each case can be
found in the judge's judgment. However, the litigation history in each case is
of relevance.
4.
The litigation history in each of the three cases was as follows. In the
Surrey case a legal aid certificate was granted on 9 January 2006.
Liability was agreed in March 2013 and that agreement was subsequently approved
by the court. By the end of February 2013 the claimant's solicitors had served
a schedule of loss and experts reports. The defendant had made no Part 36
offer. On 15 March 2013 the legal aid certificate was discharged. On 21 March
2013 the claimant entered into a CFA with solicitors, Irwin Mitchell; and the
claimant took out a 'LitigATE' policy of ATE insurance with Allianz Insurance
plc on 22 March 2012. On 29 August 2013 there was a round table meeting at
which quantum was agreed, in the lump sum of £2.4 million plus annual
periodical payments for life starting at £74,400 and rising to £154,236. That
agreement was approved by the court on 4 November 2013.
5.
In the AH case a legal aid certificate was granted on 4 March
2010. A letter of claim was sent on 7 September 2011. The defendant's reply of
19 January 2011 contained a partial admission accepting that breach of duty led
to the claimant being admitted to intensive care; but causation remained
substantially in issue because it was not admitted that the breach of duty
caused the strokes or the consequential brain damage. Thereafter, on 31
January 2013 proceedings were served. The defendant had made no Part 36 offer.
On 27 February 2013 the claimant's solicitors, Irwin Mitchell, applied to
discharge the legal aid certificate. On 18 March 2013 the defendant made a
Part 36 offer of £285,000. On 27 March 2013 the claimant entered into a CFA
with the solicitors and took out ATE insurance. On 13 December 2013 the
defendant made an increased Part 36 offer of £325,000 plus CRU of £26,409.
That offer was accepted on 26 September 2013 and the settlement was approved by
the court on 13 December 2013.
6.
In the Yesil case a legal aid certificate was granted on 19 April
2007. Breach of duty was admitted on 30 April 2010. A letter of claim was
sent on 10 November 2010. Causation was admitted in April 2011. The defendant
had made no Part 36 offer. Legal aid was subsequently discharged at the
claimant's request, and his litigation friend entered into a CFA with Irwin
Mitchell, and took out ATE insurance on 25 March 2013. In July 2013 the
claimant served a schedule of loss claiming over £7 million. On 19 February
2014 the defendant accepted the claimant's Part 36 offer of £2.5 million
together with staged periodical payments for life of £89,000 rising to £205,000
per annum.
7.
Thus in each of
the three cases, by the time the legal aid certificate was discharged the
defendant was in principle the paying party, although in the AH case
there was still an important issue about causation to be resolved. Costs would
be recoverable from the defendant at ordinary commercial rates, rather than the
lower rates that Legal Services Commission ("the LSC") would pay if the claim
failed and Irwin Mitchell had to look to the LSC for remuneration. In each case
the CFA provided that the success fee would be payable "if you Win your Claim".
It stated that "you win your Claim … when your claim is finally decided in your
favour, whether by a Court decision or by an agreement to pay you Damages". It
also provided that if any costs were disallowed on an assessment, the client
would not be liable to pay those costs. It was this that made the CFA what is
known in the jargon as "a CFA-lite". In terms of the definition in the CFA a
success fee was assured.
8.
The judge described the essential legal background succinctly at [2] to
[3]:
"[2] The substantive litigation in each case had been
proceeding for several years prior to 1 April 2013 and the claim of each
claimant had been advanced with the benefit of legal aid. April 1, 2013 was the
date from which it would no longer be possible for claimants proceeding under a
conditional fee agreement ("CFA") to recover success fees and after the event
("ATE") premiums from the defendant if successful in the litigation. In the
month or so prior to 1 April 2013 the solicitors acting for each claimant
(Irwin Mitchell LLP), with the agreement of the litigation friend of each
claimant, arranged for the legal aid certificates to be discharged in each case
and for the funding for each claimant henceforth to be funded by a CFA. In
fact, the CFA was what is known generally as a "CFA lite"-in other words, a CFA
by virtue of which the client's liability to pay his lawyers' costs is limited
to the amount of costs recoverable from the other party. Any shortfall is
absorbed by the solicitors.
[3] Each case was finalised in a way that was successful from
each claimant's point of view resulting in a liability upon each defendant for
costs. However, in due course, recovery of the success fee and the ATE premium
in each case was challenged by the defendant (in reality, by the National
Health Service Litigation Authority -"the NHSLA") and the costs judge upheld
the challenge in each case, holding that the changed funding arrangements were
not reasonable."
9.
Changes to the funding regime were made by The Legal Aid, Sentencing and
Punishment of Offenders Act 2012 ("LASPO"). One of the changes accompanying the
changes to the litigation funding regime that was due to come into effect on 1
April 2013 was an increase of 10 per cent in the level of general damages. This
was one of Sir Rupert Jackson's recommendations to which effect was given by
this court in Simmons v Castle [2012] EWCA Civ 1039, [2013] 1 WLR 1239
by two judgments given in September and October 2012. In that case the court
stated:
"Accordingly, we take this opportunity to declare that, with
effect from 1 April 2013, the proper level of general damages in all civil
claims for (i) pain and suffering, (ii) loss of amenity, (iii) physical
inconvenience and discomfort, (iv) social discredit, or (v) mental distress,
will be 10% higher than previously, unless the claimant falls within section
44(6) of the 2012 Act."
10.
The effect of section 44 (6) of LASPO, to which the court referred, was
that the abolition of recoverable success fees under CFAs would not prevent the
recovery of a success fee under a CFA entered into before 1 April 2013. The
increase in general damages has been referred to as "the Simmons v Castle
uplift". It follows that where a CFA was entered into before 1 April 2013,
there was no possibility of recovering the Simmons v Castle uplift. In Surrey the Simmons v Castle uplift was worth between £16,695 and £20,970. In AH
it was worth about £17,500; and in Yesil it was worth about £28,000.
11.
It is of some significance to understand the reason for Sir Rupert's
recommendation that the level of general damages be increased by 10 per cent.
The recommendation itself was contained in para 5.1 of Chapter 10 of his Final
Report, together with a recommendation that success fees be capped at 25 per
cent of damages, excluding damages for future care or future losses. The
purpose of the recommendations was, as Sir Rupert stated, "to assist personal
injury claimants in meeting success fees out of damages." In para 5.4 he
commented:
"I am advised by Professor Paul Fenn (economist assessor)
that such an increase in general damages will in the great majority of cases
leave claimants no worse off. Indeed the great majority of claimants (whose
claims settle early) will be better off."
12.
This court accepted that rationale in its second judgment in Simmons
v Castle at [27] and [31].
13.
There is no objection on the part of the defendants to their liability
to pay the claimants' solicitors' base fees. The objection is to the success
fees, and the ATE insurance premiums payable as a result of the change from
funding by legal aid to funding by CFA-lite. In the case of Surrey, the
combined total claimed exceeded £100,000; in AH it exceeded £50,000, and
in Yesil it exceeded £100,000. What marks these cases out from previous
cases that the courts have considered is the combination of two facts: (a) at
the time of the switch to the CFAs the claimants already had legal aid; and (b)
at the time of the switch the defendants were already, in principle, the paying
party.
14.
The question for us is whether, in each of the three cases, the decision
to enter into a CFA, with its accompanying ATE insurance policy, gave rise to
costs reasonably incurred. Where the client is faced with a choice between two
alternative courses of action which will involve incurring costs, it may well
be the case that both courses of action are reasonable, even if one is more
costly than another. For example, it may be reasonable to instruct solicitors
in London rather than in the regions, even though the former charge more than
the latter, and even where the latter would have been capable of doing a
perfectly competent job. Whether the incurring of costs is or is not reasonable
will depend on the facts that are relevant to the particular case under
consideration.
15.
The test applicable to the question whether costs have been reasonably
incurred has been considered at least twice by this court. In Wraith v
Sheffield Forgemasters Ltd [1998] 1 WLR 133 (heard together with Truscott
v Truscott) the court approved the statement of principle made at first
instance by Potter J:
"In relation to the first question 'Were the costs reasonably
incurred?' it is in principle open to the paying party, on a taxation of costs
on the standard basis, to contend that the successful party's costs have not
been 'reasonably incurred' to the extent that they had been augmented by
employment of a solicitor who, by reason of his calibre, normal area of
practice, status or location, amounts to an unsuitable or 'luxury' choice, made
on grounds other than grounds which would be taken into account by an ordinary
reasonable litigant concerned to obtain skilful, competent and efficient
representation in the type of litigation concerned … However, in deciding
whether such an objection is sustainable in practice, the focus is primarily
upon the reasonable interests of the plaintiff in the litigation so that, in
relation to broad categories of costs, such as those generated by the decision
of a plaintiff to employ a particular status or type of solicitor or counsel,
or one located in a particular area, one looks to see whether, having regard to
the extent and importance of the litigation to a reasonably minded plaintiff, a
reasonable choice or decision has been made."
16.
That case illustrates the sensitivity of the test to the facts of the
case. In one of the two cases under appeal (Truscott v Truscott) it was
held to have been reasonable for the claimant to have instructed London
solicitors instead of local solicitors; while in the other (Wraith v
Sheffield Forgemasters Ltd) it was held to have been unreasonable for the
claimant to have instructed London solicitors rather than local solicitors. The
way in which this test was applied in Truscott is particularly
instructive. At first instance the judge had simply compared the charging rates
of the London solicitors, ATC, with the charging rates of a local firm. This
court held that was too narrow an approach. It examined the reasons (of which
there were seven) why Mr Truscott had chosen the solicitors that he did. One of
those reasons was entirely personal to him: namely his dissatisfaction with his
previous (local) solicitors. Another, which has relevance to the issues in our
cases, was the fact that he had taken advice about whom to consult, and had
been recommended to consult ATC. Thus the court examined the litigant's
particular reasons for making the choice that he did. Equally important, the
court excluded from consideration any particular experience that ATC had in
relation to professional negligence:
"… because that was not why Mr Truscott consulted them."
17.
It is plain, in my judgment, that in examining whether costs were
reasonably incurred the court is entitled to (and, in practical terms, will
often have to) examine the reasons why the litigant incurred the costs that he did.
18.
Potter J's statement of principle was again approved by this court in Solutia
UK Ltd v Griffiths [2001] EWCA Civ 736, [2002] PIQR P16 in which, having referred
to Wraith, Latham LJ said at [16]:
"… whereas it is clear that the test must involve an
objective element when determining the reasonableness or otherwise of
instructing the particular legal advisers in question, nonetheless that must
always be a question which is answered within the context of the particular
circumstances of the particular litigants with whom the court is concerned."
19.
That was another case in which the court took into account the
particular reasons why the claimants had instructed London solicitors. As
Latham LJ put it at [22]:
"It seems to me that the costs judge was clearly wrong in
failing to take account of those special features of the case which were
material to the decision to instruct Leigh Day & Co…."
20.
Thus the court took into account the factors that were material to the
decision. The choice of "material" as the appropriate adjective also has a
bearing on the issues we have to decide.
21.
Sarwar v Alam [2001] EWCA Civ 1401, [2002] 1 WLR 125 concerned
the reasonableness of entering into a CFA, together with ATE insurance, in a
low value claim arising out of a road traffic accident. The claim was one by a
passenger against the driver of the car in which he was travelling. The
claimant had told his solicitor that he had no before the event insurance ("BTE
insurance"). In fact the driver's own BTE insurance might have funded the
claim, but the claimant's solicitor made no inquiries about that. The issue was
whether the ATE insurance premium was recoverable by way of costs. At [50] the court
said:
"The overriding principle is that the claimant, assisted by
his/her solicitor, should act in a manner that is reasonable. The availability
of ATE cover at a modest premium will inevitably restrict the extent to which
it will be reasonable for a solicitor's time to be used in investigating
alternative sources of insurance."
22.
At [51] the court recorded the submission that the quality of a
solicitor's advice should be judged by the same standards as professional
negligence. The court rejected that submission, stating:
"We deprecate any attempt to equate the question of
reasonableness that a costs judge has to decide with the question whether the
claimant's solicitor has been in breach of duty to his/her client. If a
solicitor gives advice which proves unsound, it will not necessarily follow
that the advice was negligent. The advice will necessarily be based on
information provided by the client. If the information is inadequate or
inaccurate, the advice may prove to be unsound without any question of fault on
the part of the solicitor."
23.
In the result, the court held that the cost of the ATE insurance premium
was recoverable because it was not incumbent on a passenger who wished to sue
the driver to rely on the driver's own BTE insurance. What I draw from these
two paragraphs is that a relevant factor in the reasonableness of the receiving
party's choice to incur costs is the advice that he has received; and that if
that advice is not "sound" (without necessarily being negligent) it may
compromise the reasonableness of the choice. That fits in with the way in which
the court took into account the advice that Mr Truscott had had before deciding
to consult ATC.
24.
In each of our three cases the costs judge posed the question that he
had to answer. In Surrey Master Rowley said at [68]:
"The test set out above from Sarwar requires me to
consider whether the claimant, assisted by his solicitor, has acted in a manner
that is reasonable. The relevant action is of course the decision to change
funding arrangements and so the question is whether the claimant made a
reasonable choice in doing so. As Master Gordon-Saker said in LXM, the
choice does not have to be the best one, but merely a reasonable one."
25.
In AH Deputy Master Campbell posed himself the question at [62]:
"Was this claimant's choice objectively reasonable based on
the advice she was given by Irwin Mitchell, taking all relevant circumstances
into account?"
26.
In Yesil DJ Besford said at [53]:
"The general test remains, whether this claimant made a
reasonable choice in all the circumstances to switch funding at the time that
he/she did. When considering the claimant's actions, the justification,
including legal advice proffered at the time also weighs into the mix. I
further accept that the choice made does not have to be the best one, with the
benefit of full and competent advice, but merely a reasonable choice. This
necessarily involves an element of both subjective and objective assessment. If
a decision is manifestly reasonable, then the lack of correct or inadequate
advice does not render a reasonable decision, unreasonable. However as the
cases show, when looking at 'all the circumstances' the choice is fact
sensitive. In assessing 'all the circumstances' legal advice or its absence is
a relevant circumstance"
27.
I do not consider that any of the three costs judges mis-stated the
legal test that they were required to apply. Nor did Foskett J suggest that
they had. So this is not a case in which it can be said that the costs judges
misdirected themselves in law. Foskett J was sitting as an appeal court from
the three decisions of the costs judges. The test that he was required to apply
was described in Solutia at [11]:
"Essentially the test requires the appellate court to
consider whether or not, in a case involving the exercise of discretion, the
judge has approached the matter applying the correct principles, has taken into
account all relevant considerations and has not taken into account irrelevant
considerations, and has reached a decision which is one which can properly be
described as a decision which is within the ambit of reasonable decisions open
to the judge on the facts of the case."
28.
It might, perhaps, be more accurate to describe the decision of the costs
judge that a receiving party had not discharged the burden of proof as an
evaluative judgment, rather than the exercise of a discretion; or even as a
finding of fact. To describe the decision as an evaluative judgment rather than
an exercise of discretion does not, I think, significantly alter the test which
an appellate court must apply. But if the decision is described as a finding of
fact the burden of persuading an appeal court to reverse a finding of fact is
even higher: see for example Henderson v Foxworth Investments Ltd
[2014] UKSC 41, [2014] 1 WLR 2600. However, I am content to proceed on the
basis that the test is as stated in Solutia.
29.
In each of our three cases, the costs judges considered the pros and
cons of funding by legal aid as opposed to funding by a CFA-lite plus ATE
insurance. At an abstract level there was something to be said for each method.
In AH Deputy Master Campbell held at [49] that there was "no advantage
or combination of advantages which makes one choice more compelling and
irresistible than any other…" In Yesil DJ Besford held at [75] that "the
decision is finely balanced if one approaches the issue from a level playing
field." In Surrey, I think that Master Rowley reached the same
conclusion, although he did not summarise his conclusion quite so pithily. Between
[79] and [93] Foskett J also conducted a balance sheet assessment, at a generic
level, of the pros and cons of each funding method. I agree with Mr Hutton QC
that a generic high-level assessment of the pros and cons of the two methods of
funding does not answer the question whether costs were reasonably incurred in
the particular case under consideration. While the judge was, understandably,
trying to give general guidance, I do not consider that the question whether a
change in funding method was reasonable is a question to be answered at the
macro level. As Lord Scott put it in his dissenting speech in Callery v Gray
[2002] UKHL 28, [2002] 1 WLR 2000 at [114]:
"The correct approach for costs assessment purposes to the
question whether an item of expenditure by the receiving party has been
reasonably incurred is to look at the circumstances of the particular case. The
question whether the paying party should be required to meet a particular item
of expenditure is a case specific question."
30.
Mr Williams QC argued that since there was nothing much to choose
between funding by legal aid and funding by CFA-lite plus ATE insurance, it
followed that either choice was a reasonable choice. It therefore followed that
the costs incurred in entering into the CFA-lite and the ATE policy were
reasonably incurred; and that the costs judges were not entitled, let alone
required, to examine the reasons for the switch. I do not agree. The court is
required to take into account all the circumstances of the case. That means the
particular case under consideration: not some generalised description of
similar cases, as Solutia makes clear. Moreover, the burden of proof, in
the case of an assessment on the standard basis, lies on the receiving party. Accepting
for the sake of argument that there is a "level playing field" and that there
was not much to choose between funding by legal aid and funding by CFA, the
fact is that in each of the three cases the claimant already had chosen legal
aid. If there is not much to choose between the two methods of funding, and the
claimant decides to switch to a funding method that is far more disadvantageous
to a paying party, I consider that the paying party is at least entitled to ask
the question: why did you switch? In those circumstances I consider that it is
up to the receiving party to justify his choice; and that entails examining the
reasons why the choice was made.
31.
In our cases the judge held at [73] (the emphasis is his):
"It seems to me that what Sarwar's case decided, as a
matter of principle, albeit in the context of the issues that arose in that
case, was that the advice received by the receiving party on an issue as to the
funding of the litigation may be relevant to the question of the
reasonableness of the decision concerning funding, but the advice itself is not
to be judged by reference to the standards of negligence."
32.
I agree with this, as far as it goes, at least in a case in which the
litigant has followed his solicitor's advice. However, in my judgment, the real
issue is not the advice as such, but the reasons why the
receiving party made the choice that he did. If the reasons for that choice are
contained in the advice, then the advice constitutes the reasons. In my
judgment a costs judge is entitled to examine the reasons why a receiving
party made the choice that he did; and in many cases that will entail looking
at the advice that he received.
33.
So what were the reasons that prompted each of the claimants to switch
from funding by legal aid to entry into a CFA-lite? The NHSLA applied for
disclosure of contemporaneous materials evidencing the advice that had been
given to the clients in each case, in accordance with the procedure laid down
in PD 47 para 13.13. This gives the receiving party an election whether to
disclose the material (which is likely to be privileged) or to decline to
disclose and "instead rely on other evidence". In the present case Irwin
Mitchell chose to rely on other evidence. It seems to me that in those
circumstances we must take that evidence as proxy for the reasons given to the
client for the change.
34.
In Surrey, the relevant solicitor was Ms Stanford-Tuck. She made
a witness statement in which she explained why she had advised the switch from
legal aid to a CFA-lite. That switch was made at a time when judgment for
damages to be assessed had already been entered against the defendant; and no
Part 36 offer had been made. Her main point was that there was no guarantee
that the LSC would increase the reserve to a sufficient level to fund the
assessment of damages hearing. However, she gave no details of what costs had
been incurred, what the authorised costs limit was, what further costs needed
to be incurred, and how the LSC had reacted to requests for an increase in the
costs limit. In short, her discussion was at a very high level of generality. She
also made the extraordinary point that:
"There was a risk to the client that there may not be
sufficient funding to cover the cost of our work in the future and my client
could be exposed to make up the shortfall of any costs not recovered from the
Defendant."
35.
If that was the advice that she gave her client, it was also seriously
misleading. It amounts to saying that a legally aided client must make up the
shortfall in his own solicitors' costs if they are not recovered from the other
side. But that amounts to "topping up" which is unlawful: Access to Justice Act
1999 s 10 (1) and s 22 (2); LASPO s 23; s 28 (2). On one reading of her
evidence the amount of that shortfall might have been as much as £150,000. If
the client was advised of a very substantial potential liability that was in
fact unlawful, then he has been misled into making a decision based on deeply
flawed advice to the effect that he was exposed to a substantial financial risk
which was in fact non-existent. Although this was one of the reasons that
Master Rowley gave for his decision, Foskett J did not refer to it. Having
stated the main reasons for the switch, Ms Stanford-Tuck also said that there
were "other general considerations" to be taken into account. Among these was
the point that legal aid does not protect a client's damages from the effect of
failing to beat a Part 36 offer, or adverse interlocutory costs orders.
However, although these risks were mentioned, she gave no consideration to the
likelihood of any of those risks eventuating, on the facts of the particular
case.
36.
Master Rowley was not impressed with Ms Stanford-Tuck's reasoning. He
found at [74] that the solicitors had no concern that they would not recover
their fees to date, even though they had ignored the costs limitation imposed
by the LSC. At [75] he dismissed the argument based on the alleged bureaucratic
approach of the LSC. At [82] he held that the risk of legal aid being withdrawn
was fanciful; and the costs limitation was not problematic. He considered at
[76] that the strongest reasons for the change in funding were the shortfall
issues. There were two potential points about shortfall. One was the risk of
failing to beat a Part 36 offer. The other (which he described as modest) was the
operation of the LSC's statutory charge.
37.
In AH the relevant solicitor was Ms Cumberland. She made two
witness statements. In her first witness statement she drew attention to the
fact that although breach of duty had been admitted, causation had not; and
that the bulk of the claimed damages was dependent on a favourable finding on
causation. She said that there was no guarantee that the LSC would increase the
scope of the costs limit; and that the LSC might have taken a different view on
the merits of the claim. She also said that she had been involved in cases
where the legal aid certificate had been discharged. She, too, said:
"There was a risk to the Claimant that there might not be
sufficient funding to cover the costs of the legal work necessary in the future
and the Claimant could have been expected to make up the necessary shortfall of
any costs not recovered from the Defendant."
38.
Just as in the case of Ms Stanford-Tuck, this amounted to a suggestion
of illegal "topping up". And as in Surrey, it appears that the client
was being advised of a substantial financial risk that was in reality
non-existent. This, too, was seriously misleading advice. Her second witness
statement did not correct it. This is not a feature upon which Deputy Master
Campbell commented. Mr Williams tried to explain away the references by both Ms
Stanford-Tuck and Ms Cumberland to "topping up" as no more than muddled
expression; but I do not think that there is any getting away from the
impression that that advice must have made on the client in each case. However,
like Ms Stanford-Tuck, Ms Cumberland also said that there were "other general
considerations" to be taken into account. In words which were almost identical
to those in Ms Stanford-Tuck's witness statement, she referred to the risk that
if the defendant made a Part 36 offer, which the claimant failed to beat, the
claimant would be liable to pay the defendants costs incurred thereafter, and
that those costs could be set off against any costs otherwise recoverable by
the claimant, or even against the damages themselves. But as in the case of Ms
Stanford-Tuck there was no evaluation of the risks themselves.
39.
In Yesil the reasons for the change were set out in a witness
statement made by Ms Rowland, the solicitor handling the case. That witness
statement was made after Master Rowley's decision in Surrey, so Ms
Rowland eschewed those reasons which he had held to be bad reasons: in
particular the suggestion about "topping up". She said that she had calculated
costs incurred so far at legal aid rates as £92,000 as against a costs limit of
£94,000. Her perception, therefore, was that the costs were close to the limit.
She asked the LSC for an increase in the limit to £240,000 to cover the full
costs of the action. The LSC replied that it was "inevitable that you will be
recovering your costs inter partes from the other side." However, the LSC did
not refuse outright. Instead it said that if costs could not be contained
within typical limits it would require a "fully costed costs plan". That would
have given a likely maximum of £189,000.
40.
Ms Rowland also mentioned the possibility of a Part 36 offer. What she
said was:
"The Defendants could have made a Part 36 offer at any time,
and in a case with six experts and four single joint experts, the unrecovered
costs could have been very substantial."
41.
She also said:
"When advising my client, I also took into account the 10 per
cent increase in general damages which would apply to a post LASPO CFA. In this
case, however, this factor was significantly outweighed by the benefits of a
pre LASPO CFA as set out above."
42.
Despite that statement, it was accepted that Ms Rowland did not mention
the Simmons v Castle uplift to her client.
43.
DJ Besford held that there were a number of flaws in Ms Rowland's approach.
First, she had seriously overestimated the amount of costs incurred. Far from
being £92,000, they were £66,703. They were therefore well inside the costs
limit. Second, the figure of £240,000 was never justified. As DJ Besford held
at [64] it was put forward "in a vacuum and without any justification." Third,
Ms Rowland never responded to the LSC's request for a fully costed costs plan.
Fourth, Ms Rowland appears to have paid no attention at all to the LSC's valid
point that as matters stood at the time, no Part 36 offer having been made, it
was inevitable that the claimant would recover inter partes costs from
the NHSLA. In her statement she said that the most prominent factor in
advising her client to switch funding methods was that "we were about to reach
the cost limit on the legal aid certificate, and the Legal Aid Agency had
refused any application for further funding." If that was the advice she gave
her client, it was seriously misleading. They were not about to reach the
costs limit on the legal aid certificate. Nor had the Legal Aid Agency refused
further funding. Indeed, DJ Besford held at [85] that the risk of exceeding the
legal aid budget was "minimal". As he held at [63], the fear of exceeding the
budget was the deciding feature to prompt the decision to switch funding. He
further held at [69], in my judgment correctly (although the syntax has gone
wrong):
"Any decision based upon the inevitability of switch based
upon exceeding the budget would appear to be an erroneous assessment."
44.
He concluded at [83] that the primary reason for the switch was based
upon erroneous information; and in those circumstances the decision to incur
the costs associated with the CFA-lite had not been sufficiently justified. In
particular he said:
"On a standard basis, without cogent evidence that the
decision to switch from one type of funding to another was a reasonable
decision, then a doubt is raised which should be exercised in favour of the
paying party."
45.
This conclusion preceded his conclusion on the Simmons v Castle
uplift.
46.
Having referred to the decision of Master Rowley in Surrey, he
concluded at [87]:
"… I find myself entirely in agreement with Master Rowley in Surrey's case. It is for the claimant on a standard basis to show that the decision to
switch funding, at the time it was made was a reasonable decision to take. The
limited evidence before the court to explain the decision was based on an
erroneous premises that the cost limit was shortly to be reached. Further,
the solicitors have produced no evidence either by way of file notes, copy
letters or even a witness statement from the client as to the advice tendered.
In my judgment, the decision to switch was not self-evident or transparent."
(Emphasis added)
47.
What was common to all three cases was that the claimant's litigation
friend was not informed by the solicitors (apparently through oversight) that
one consequence of the change from legal aid funding to CFA-lite funding was
that the claimant would lose the benefit of the 10 per cent uplift in damages
mandated by Simmons v Castle. As I have said, although DJ Besford
mentioned this point in Yesil, it does not seem to me that it formed any
part of his real reasons for disallowing the success fee and the ATE premium.
By contrast in both Surrey and AH, this point was a critical
factor. Each of the costs judges in those two cases held that it was impossible
to say what decision would have been made if that information had been given.
There was therefore a doubt about whether the decision was reasonable, which
had to be resolved in favour of the paying party. The success fees and ATE
premiums were therefore disallowed.
48.
In reaching their conclusions each of those costs judges relied on an
analogy drawn with the law relating to the giving of informed consent to
medical treatment, as explained by the Supreme Court in Montgomery v
Lanarkshire Health Board [2015] UKSC 11, [2015] AC 1430. In that case Mrs
Montgomery, a diabetic, was not told of the risks involved in giving birth
vaginally as opposed by means of caesarean section. She proceeded to give birth
vaginally, but the birth went wrong and her baby was starved of oxygen, as a
result of which he was born with severe disabilities. That damage would have
been avoided if Mrs Montgomery had had a caesarean section. The question for
the Supreme Court was whether the failure to inform Mrs Montgomery of the risks
of giving birth vaginally amounted to a breach of the medical practitioner's
duty of care. In other words, at bottom, the question was who should bear the risk
of things going wrong: the patient who did not know the risks; or the doctor
who did, but who did not tell the patient? As the judge correctly said, the nub
of the decision is at [87]:
"An adult person of sound mind is entitled to decide which,
if any, of the available forms of treatment to undergo, and her consent must be
obtained before treatment interfering with her bodily integrity is undertaken.
The doctor is therefore under a duty to take reasonable care to ensure that the
patient is aware of any material risks involved in any recommended treatment,
and of any reasonable alternative or variant treatments. The test of
materiality is whether, in the circumstances of the particular case, a
reasonable person in the patient's position would be likely to attach
significance to the risk, or the doctor is or should reasonably be aware that
the particular patient would be likely to attach significance to it."
49.
In the Surrey case Master Rowley held that a solicitor must set
out the various options fully and properly as part of explaining why her advice
is to follow a particular course. If a material piece of advice is not given,
the advice is insufficient to found a reasonable decision. The test of
materiality is the same as in the Montgomery case. Since the solicitor
gave no advice about the Simmons v Castle uplift on general damages; and
it was impossible to say what decision would have been made with fuller advice,
the success fees were not shown to have been reasonably incurred and were
irrecoverable. In AH Deputy Master Campbell concluded that the decision
to switch funding method was not reasonable because it was based on incomplete
advice in which a "significant component was missing". That component was the
failure to inform the client that by switching from legal aid to a CFA-lite the
Simmons v Castle uplift on general damages would be forfeit. That was
something which could have tipped the balance of choice one way or the other if
the client had known about it. He concluded that:
"… the claimant's decision, based as it was upon advice that
was flawed in a material way, was not objectively reasonable and the claims for
success fees and ATE premium therefore fail."
50.
In Yesil DJ Bedford also referred to the test in Montgomery; but as I have said I do not consider that his decision was based on the
failure to mention the Simmons v Castle uplift.
51.
I find it hard to see how the decision in Montgomery bears directly
on this case. The issue in Montgomery was quite different: it concerned
the scope of the duty of a medical practitioner towards a patient. The quality
of the patient's decision to undergo treatment was not the point. In the
present case the question is whether the costs in question were reasonably
incurred. Accordingly, I agree with the judge at [96] that the focus on Montgomery was "a distraction". However, although I agree with the judge that
Montgomery was a distraction, I do not think that the rather unhelpful
analogy undermines the correctness of each of the costs judges looking at the
particular reasons why each litigation friend made the choice that he or she did.
As we have seen the court often examines the reasons underlying a particular
choice in the context of litigation; and a test of materiality is not
inappropriate, as we have seen from Solutia. I consider also that if (as
each costs judge found) the reasons given for the choice were a mix of good and
bad reasons; and that some clear disadvantages to the client of making the
switch had not been explained, the burden was on the receiving party to satisfy
the costs judge that even if the bad reasons had not been put forward, and the disadvantages
had been properly explained, the client would still have made the same choice.
52.
In Surrey Master Rowley decided at [86] that:
"On the facts of this case, the failure to give advice
regarding the post LASPO landscape and in particular the Simmons damages, in my
view rendered the advice to be insufficient on which to found any proper or
reasonable conclusion." (Emphasis added)
53.
The relevant facts are those that I have already summarised. Some of the
risks on which the solicitors relied were on the face of it unlawful. Others
were dismissed as fanciful or not problematic. The only one that remained was
the risk of shortfall by reason of a failure to beat a Part 36 offer. But that
was no more than a risk, that had to be evaluated. By contrast the forfeiting
of the Simmons v Castle uplift was a certainty. If it is said to be
reasonable to forgo a certainty on account of a risk, it is incumbent on the
person upon whom the burden of justification rests to demonstrate that the
risks have been properly evaluated on the facts of the particular case. In my
judgment Master Rowley was entitled to conclude that to engage with the
potential risks at such a high level of generality, without reference to the
specific risks involved in this particular case, coupled with a failure to
balance those risks against the certainty that the Simmons v Castle
uplift would be forfeit, was not good enough. I suggested in the course of argument
that what has been called the "Part 36 risk" is in fact three risks. But on
reflection, and in the light of Mr Hutton's reply, I think that there are in
fact four cumulative risks:
i)
The risk that the defendant makes a Part 36 offer at some stage before
the case has settled;
ii)
The risk that, on the advice of his solicitors, the claimant rejects
that offer;
iii)
The risk that, having rejected the offer, the case goes to trial; and
iv)
The risk that at trial the claimant fails to beat the offer.
54.
Master Rowley concluded at [88]:
"There is no evidence before me to indicate whether the
claimant or his Litigation Friend would have considered the abandoning of up to
£20,000, which was more or less guaranteed, in return for peace of mind
regarding future funding. They may have decided that the system that had
apparently worked for 7 years was unlikely to break down in the final stages
and they would rather have the money and risk the funding issues. They may have
taken the view that QOCS protected them sufficiently not to incur an ATE
premium. The possibilities for speculation are endless."
55.
In AH Deputy Master Campbell held at [63] that the advice was more
than merely incomplete because a "significant component" was missing. The
client should have been told that by entering into the CFA she would
immediately forfeit the right to a 10 per cent uplift on general damages,
estimated at about £17,500. Deputy Master Campbell was careful to say that if
the client had been given that advice it would not necessarily have
changed the decision. As he put it at [64]:
"As Mr Hutton points out, we do not know what the client
would have said had the Simmons advice been given. It could have been
"It is worth giving up £17,500 to have the certainty that under a CFA, I
will be litigating in a risk-free costs environment in which I will keep all
the damages". On the other hand, it could also have been "A
settlement discussion has been opened over the telephone, an offer has now been
made, we are very close, and £17,500 is a lot of money to give up. As it is, I
have the protection of the legal aid certificate. Thank you for giving me this
advice but let's play it safe and stick with what we have got as it looks as
though we may be able to agree terms before long"."
56.
At [67] he said that it was a factor that might have tipped the balance.
He thus held:
"It follows that the claimant's decision, based as it was
upon advice that was flawed in a material way, was not objectively reasonable
and the claims for the success fees and ATE premium therefore fail."
57.
It was, of course, not necessary for Deputy Master Campbell to have gone
that far. It would have been sufficient for him to have said that there was a
doubt about whether the costs had been reasonably incurred; and that the doubt
had to be resolved in favour of the paying party. This is what DJ Besford had
said in Yesil at [83].
58.
In relation to the Part 36 risk I consider that in Yesil DJ
Besford carried out the correct exercise, noting the difference between a risk
and a certainty. As he put it at [86]:
"Whilst [there] may possibly be risks that the claimant may
have to pay something out of his damages, the available evidence from Irwin
Mitchell is not sufficiently real to justify the loss of substantial additional
benefits. The reality may well have been that the additional damages received
may have more than met any deduction. The risk of exceeding the Legal Aid
budget was minimal and there is a lack of particularity of the 'other
circumstances' referred to in the witness statement."
59.
I consider that DJ Besford was also correct in saying at [85]:
"… any shortfall for solicitor/client work would need to be
weighed against the additional 10% which was introduced with the intention to
offset any such prejudice."
60.
The bottom line is that in each of the three cases the advice given to
the client had exaggerated (and in two cases misrepresented) the disadvantages
of remaining with legal aid funding; and had omitted entirely any mention of
the certain disadvantage of entering into a CFA. Moreover, one of the advantages
of entering into the CFA was Irwin Mitchell's own prospective entitlement to a
substantial success fee. In those circumstances I consider that DJ Besford was
correct in saying at [81]:
"Where one of two or more options available to a client is
more financially beneficial to the solicitor, the need for transparency becomes
ever greater."
61.
This a reflection of the fundamental principle of equity that where a
person stands in a fiduciary relationship to another, the fiduciary is not
permitted to retain a profit derived from that fiduciary relationship without
the fully informed consent of the other.
62.
Why did the judge disagree with the costs judges? At [95] he said:
"For reasons which will emerge more fully below, I do
consider, with respect, that each Costs Judge placed too much weight on the
suggested analogy with the informed consent issue in the context of medical
treatment…. Mr Williams is, in my view, right to say that, in the first place,
it over-complicates the issue which, putting it shortly, is simply whether the
additional liabilities were reasonably or unreasonably incurred."
63.
This criticism of the costs judges is restricted to the weight
that they gave to the analogy. Even if that were a fair criticism (and I do not
think that it is), it does not amount to saying either that the costs judges
took into account an irrelevant consideration; nor that their decisions on the
facts were outside the ambit of reasonable decisions open on the facts of the
three cases. In questions involving the exercise of a discretion, questions of
weight are questions for the primary decision maker: not for an appeal court.
Although Mr Williams said that a decision-maker may overweight or underweight a
particular factor to such an extent as to make his decision vulnerable to
attack on appeal, that will only be the case if the decision falls outside the
band of reasonable decisions open to the decision-maker on the facts. The judge
did not make that finding. In short, I do not consider that the judge applied
the right test to his appellate role. On that ground alone, I do not consider
that he was entitled to interfere with the evaluative judgment of the three
costs judges.
64.
In addition, there are also other parts of his judgment with which I
disagree. First, in reversing DJ Besford's decision in Yesil the judge
appears to have thought that the driver for the decision was Ms Rowland's
failure to inform the client that by entering into a CFA-lite the claimant
would lose the benefit of the Simmons v Castle uplift. It is true that
DJ Besford mentioned that in the course of his discussion, but it is plain that
that was not the main reason for his decision.
65.
At [55] Foskett J said:
"There has been debate before me about other aspects of what
each Costs Judge said about the case he was considering, but I do not think it
can be doubted that what I will call the "Simmons v Castle
point" was the determinative factor (or the tipping point) in each case
that led to the conclusion that recovery of the success fee and the ATE
insurance premium was not reasonable"
66.
As I have said, I do not consider that that was the case in Yesil.
DJ Besford's principal reason for deciding as he did was that the choice was
made on the "erroneous premise" that the costs limit was shortly to be reached:
see [87] which I have quoted above. In my opinion the judge mischaracterised DJ
Besford's reasons for his conclusion. Because he mischaracterised those
conclusions, he gave no reasons for disagreeing with them. In my judgment DJ
Besford's conclusions were fully justified on the evidence that he had; and I
consider that the judge was wrong to reverse him.
67.
In the other two cases, it is fair to say that the failure to explain
that the Simmons v Castle uplift was the tipping point. At [105] the judge
said:
"… a Costs Judge is perfectly entitled, possibly using his or
her experience of other cases or their experience from days in practice, to ask
and, in most cases, answer the question of whether the omission to refer to the
10% uplift would have made any difference to a reasonable claimant or his
litigation friend in the circumstances prevailing in that case without
receiving evidence on the issue. However, this question should be seen from the
perspective of asking whether a reasonable claimant or reasonable litigation friend,
in the circumstances prevailing in the case, would see the possibility of
obtaining X +10% of X rather than X in the context of the overall global
settlement as a matter that would prevent the change to a CFA. In Surrey,
taking £19,000 as the value of the 10% uplift and the capitalised value of the
settlement as £7,165,255, the question is whether a reasonable claimant or
litigation friend in that situation would hold out for obtaining an increase of
0.026% of that sum rather than to have the uncertainty of the possible effect
of the statutory charge, the possible effect of Part 36 offer and possible
delays that might be overcome by being answerable to an insurer rather than the
LSC. Whilst it would be possible to try to quantify those matters, the reality
is that a solicitor would almost certainly put them forward in a broad way and
invite the claimant or the litigation friend to approach the issue accordingly."
(Original emphasis)
68.
There are, in my judgment, at least two flaws in this approach. First, the
approach that the judge adopted posed the question whether the omission to
refer to the Simmons v Castle uplift "would" have made any difference.
This differs from the approach of both Master Rowley at [88] and Deputy Master
Campbell at [64]. Both those judges said that they did not know whether the
omission would have changed the decision; but that it could have.
The judge's approach casts on the paying party the burden of showing that the
decision would have been different. By contrast, the costs judges' approach
casts on the receiving party the burden of showing that the decision would have
been the same. Since not only does the burden of proof rest on the receiving
party, but also any doubt is to be resolved in favour of the paying party, I
consider that the costs judges' approach was right, and the judge's was wrong. Second,
I also consider that the comparison that the judge posed between the overall
damages claim and the Simmons v Castle uplift was not the right
comparison. The right comparison was one between the amount of costs for
which the individual claimant might have been liable on the facts of the
particular case, balanced against the amount of the Simons v Castle
uplift, as DJ Besford correctly held. If costs for which a claimant would be potentially
liable (either because of a failure to beat a Part 36 offer or because of the
operation of the statutory charge) would have been absorbed by the Simmons v
Castle uplift, then if the risk eventuates the client is no worse off. If
it does not, then the client is obviously better off. But since the one is a
risk and the other is a certainty, the comparison cannot fairly be made without
assessing the seriousness of the risk on the facts of the particular case. The
judge did not perform that exercise, even in a "broad way". As far as the other
two cases were concerned, he said at [106]:
"When looked at in that way, I do not believe that any
reasonable claimant or litigation friend would hold out for such a marginal
improvement on the overall settlement. In Yesil the percentage increase
would be just under 0.4% (taking £24,000 as the 10% uplift). In AH it
would be somewhat higher at 5%. However, that case was, as I have said,
extremely tragic and I cannot believe that the claimant's litigation friend would
have wanted anything other than a quick and simple resolution and would not
have seen an additional £17,500 as worth pursuing."
69.
In these two paragraphs he said, in effect, that even if the Simmons
v Castle uplift had been mentioned as part of the advice given to the
client, the decision to change from legal aid funding to funding by CFA would
have been the same. Whether that is so is, of course, a question of fact. The
judge did not consider, at this point, the limitations of an appellate court's
power to reverse findings of fact. That was a material omission.
70.
Moreover, I consider that there is considerable force in Mr Hutton's
point that it was not a case of the claimants "holding out" for the Simmons
v Castle uplift. That would have been theirs by right if they had stayed on
legal aid. Nor does the judge explain why their entitlement to that uplift
would have (or could have) delayed any settlement on the facts of the
particular cases. A further flaw in this strand in the judge's reasoning was
that a possible delay in achieving settlement was not a reason that any of the
claimants advanced as justifying the switch in funding methods. Consistently
with the approach of this court in Truscott, the judge should not have
taken it into account.
71.
Mr Williams developed an argument to the effect that in a quantum only
case (such as these three cases) a litigant whose claim is funded by a CFA-lite
and ATE insurance is in a commanding position. He is immune to costs risks,
whereas his opponent may face a crushing burden of costs. That imbalance puts
pressure on a defendant to settle a case early and, moreover, has the
consequence that offers of settlement are higher. He referred in this
connection to Sir Rupert Jackson's description of such litigants as
"super-claimants". There are two problems with this argument. The first is that
it formed no part of the decision-making process. In other words this was not
one of the reasons for the switch. The second is that this argument was not run
before the costs judges and was not the subject of a Respondent's Notice. In
addition, of course, it is always open to a claimant to make a Part 36 offer,
however his claim is funded, which exerts its own pressure on a defendant.
72.
Mr Williams also submitted that, if we formed the view that the decision
to switch from legal aid funding to funding by CFA-lite plus ATE insurance was
unreasonable, it would be open to us to disallow the success fee but allow the
ATE insurance premium. This, too, was not an argument put to the costs judges,
so we do not have the benefit of their views. Nor was it the subject of a
Respondent's Notice (or even foreshadowed in Mr Williams' skeleton argument).
However, it seems to me that the ATE insurance is part of the whole package
associated with the change in funding regime. If the claimants had remained on
legal aid they would not have bought the ATE insurance. I do not consider that
it would be right to separate out the components of what is in practice an
indivisible package.
73.
For these reasons I would allow the appeals.
74.
By way of postscript I should record that Mr Hutton did not challenge
the proposition that whether costs have been reasonably incurred is to be
judged solely from the point of view of the receiving party, even in a case in
which it is known that the other side will pay the ultimate bill and the client
has no real interest in controlling costs. It is also difficult to see how the
indemnity principle applies to a case like this where under the terms of a
CFA-lite plus self-funding ATE insurance the client will never be liable to pay
anything. As Mr Williams engagingly put it, the indemnity principle in a case
like this is "a bit of a nonsense". But these are the constraints within which
we have been invited to determine these appeals.
Lady Justice King:
75.
I agree.
Lord Justice Longmore:
76.
I also agree.
