England and Wales High Court (Senior Courts Costs Office) Decisions

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Cite as: [2003] EWHC 9007 (Costs)

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This judgment has been obtained from the Supreme Court Costs Office pages on the HM Courts Service web site. The citation used by BAILII is not an officially approved citation.

		BAILII Citation Number: [2003] EWHC 9007 (Costs)
		Case No: JOH 0211064

IN THE HIGH COURT OF JUSTICE
SUPREME COURTS COST OFFICE

Supreme Courts Cost Office
Clifford Inn
Fetter Lane
London
EC4A 1DQ

31 January 2003

B e f o r e :

MASTER O'HARE, COSTS JUDGE
____________________

Between:

	LESLIE KENNETH GLIDDON	Claimant
	- and -
	LLOYD MAUNDER LIMITED	Defendant

____________________

Mr Nicholas Bacon (instructed by Bond Pearce) for the Claimant
Mr Simon Browne (instructed by Clarke Wilmott & Clarke) for the Defendant
Hearing dates : 16 December 2003 and 12 February 2003
____________________

HTML VERSION OF JUDGMENT
____________________

Master O'Hare

The Claimant was employed as a line worker at the Defendant's abattoir. On 2 December 1998 he suffered an injury at work and on 15 December 1998 he sought the assistance of his trade union, The Transport & General Workers Union, in bringing a claim for damages. The Union instructed Bond Pearce to act on his behalf and that firm sent to the Claimant a letter dated 18 February 1999 which is of a type normally described as a client care letter. That letter was countersigned by the Claimant on 19 February 1999 and returned to the solicitors as confirmation of their terms of engagement.

The solicitors entered into correspondence with the Defendants. In July 1999 the Defendants confirmed that liability was denied. Various steps were then taken on behalf of the Claimant which led ultimately to the issue of proceedings in the Exeter County Court in November 2001. The claim was allocated to the fast track and proceeded to a trial on 1 August 2002 before District Judge Wainwright. He gave judgment for the Claimant with a finding of 40% contributory negligence. The sum payable by the Defendant was assessed at £3,411.56 plus costs to be the subject of detailed assessment if not agreed. A sum of £2,500 in court was ordered to be paid out of court to the Claimant's solicitors in part settlement. At the trial the Defendants sought to raise some costs issues concerning the indemnity principle and the enforceability of a collective conditional fee agreement (CCFA) made between the trade union and the Claimant's solicitors in February 2001. At that stage the parties' main concern was as to whether or not the CCFA should be disclosed to the Defendant solicitors. District Judge Wainwright's order states:

"The issue of disclosure of CCFA be transferred to SCCO for preliminary determination."

Proceedings were commenced in this Office on 15 November 2002 and were assigned to me. I took the view that, since the Costs Office cannot give declaratory relief, I could deal with the matter only on the basis that unless the other issues were all agreed, the detailed assessment would also be heard by me. The parties have accepted that position. The Claimant's solicitors have filed a request for detailed assessment and provided a bill and other papers. The Defendant's solicitors have filed points of dispute. This judgment sets out my decision on the issues raised at a hearing before me on 16 December 2002 at which both parties were represented by counsel. Mr Bacon appeared for the Claimant and Mr Simon Browne appeared for the Defendant.

At the hearing I had before me, in addition to skeleton arguments from each counsel, a bill of costs which contained a certificate in standard form signed by Mr Mark Thompson, a partner in the Claimant's solicitors firm, confirming their compliance with the indemnity principle:

"The bill of costs claimed herein do not exceed the costs which the receiving party is required to pay my firm".

The bill is divided into three parts. The first part covers the period from the outset of instructions to the commencement of the CPR in April 1999. The second part covers the period from then until the date upon which the Claimant's solicitors allege that additional costs are payable under the CCFA. Part 3 covers the costs claimed as payable under the CCFA. In Part 3 the hourly rate claimed for the senior fee earner remains the same as in part 2 but with a success fee of 100%.

As to part 3 of the bill I also had before me a copy of Bond Pearce's letter to the Claimant dated 26 April 2001 together with the enclosures mentioned in the letter: an information sheet describing the CCFA between the solicitors and the trade union and a risk assessment form explaining why a success fee of 100% was appropriate.

The Costs Practice Direction provides that, where, as here, there is a dispute as to the receiving party's liability to pay costs to the solicitors who acted for him, "any agreement, letter or other written information provided by the solicitor to his client explaining how the solicitor's charges are to be calculated" should be filed in court together with the request for detailed assessment (CPD para 40.2(i)). Although I have not yet seen the CCFA in this case I have been given a witness statement signed by the Claimant's solicitor Mr Thompson on 11 September 2002 which states as follows:

"At this point we ask if the CCFA should be made available to the Defendant, and on grounds of its privilege, we answer no.

….

We suggest that if we choose not to give up privilege on the CCFA we will be put to an election to either disclose it or rely on other evidence.

That other evidence would be in the form of a statement by a partner of this firm stating that we entered into a CCFA with the Transport & General Workers Union on 5 February 2001. Having entered into that agreement we provided notice to the Defendant's representatives and the necessary advice to the Claimant. The Claimant is liable for our charges and at the same time has the benefit of indemnity from his trade union. We are prepared to provide that statement to satisfy the Defendant's request and this document can be treated as such a statement."

THE LIMITED QUESTIONS I MUST NOW DECIDE

For the Defendants it is now conceded that the court will not order a receiving party to produce to his opponent documents which the receiving party wants to keep secret; the protection for the paying party now is that the court will not take into account in favour of the receiving party any document produced to it by the receiving party which the paying party wants to inspect, where the receiving party has elected not to permit such inspection.

It is also conceded on behalf of the Defendants that they cannot successfully challenge the Claimants' claim for a success fee merely by putting him to proof of the contractual arrangements providing for such a success fee. Instead it is necessary for them to raise a genuine issue as to whether or not the Claimant is liable to pay a success fee in these proceedings. If they raise such an issue the Claimant will be at risk if he fails to adduce evidence which satisfactorily resolves that issue in his favour. The Defendants further concede that the Claimant's solicitors' reluctance to disclose the CCFA does not by itself raise an inference that the CCFA is defective.

The Defendants rely on statements in various documents which they say indicate one or other of the following. First, if, as alleged, there is a relevant CCFA providing for a success fee that agreement is unenforceable because the solicitors have failed to properly inform the Claimant as to the circumstances in which he may be liable to pay costs under it. Alternatively, the statements show that, despite the certificate given in the bill, there is no valid CCFA entitling the Claimant's solicitors to a success fee in this case.

In respect of the first proposition, the alleged failure to properly inform the Claimant as to his liability for costs, the Defendants draw my attention to the Collective Conditional Fee Regulations 2000 (SI 2000 No.2988) Regulation 4(2) which states as follows:

"A collective conditional fee agreement must provide that, when accepting instructions in relation to any specific proceedings the legal representative must –

a. inform the client as to the circumstances in which the client may be liable to pay the costs of the legal representative…"

The word "client" is defined in Regulation 1(2) as follows:

" "Client" means a person who will receive advocacy or litigation services to which the agreement relates…"

It will never, I think, be necessary for me to examine the CCFA in order to determine the submissions concerning Regulation 4. The Defendant's case here is that, even if the CCFA does contain the provision required by the Regulation, the solicitors have not complied with that provision and that failure is of so serious a nature as to entitle the trade union to treat the contract as discharged so far as this Claimant's case is concerned.

The Claimant's case is that the statements referred to do not raise any genuine issues challenging the Claimant's entitlement to a reasonable success fee. As to the information he was given, the Claimant's case is that he was properly informed as to the circumstances in which he may be liable to pay costs. As to the validity of the CCFA, the Claimant says the only real evidence I have seen on this issue is the certificate in the bill (see paragraph 4 above) and the witness statement of Mr Thompson (see paragraph 6 above). Alternatively, even if he has no liability for Bond Pearce's costs, the Claimant's case is that CCFA's are a new statutory exception to the indemnity principle.

It is agreed between the parties that, even if I find for the Defendant, this decision will only affect Part 3 of the bill (work done after the inception of the alleged CCFA) and will only disentitle the Claimant to claim the success fee. The Defendants concede that, in this case, the making of a void CCFA does not exclude the solicitor's entitlement to claim in quantum meruit under the original retainer, ie, the retainer relied on in the earlier parts of the bill.

THE DOCUMENTS RELIED ON BY THE DEFENDANT

In order to challenge the Claimant's entitlement to a success fee in this case, the Defendants rely on five documents or groups of documents. It is convenient for me to summarise these in turn, summarising also the answers made by the Claimant.

Letter from solicitor to Claimant dated 26 April 2001

This letter begins "It is necessary that I write to you to tell you about a change in the contractual arrangement between ourselves and the TGWU". The Defendants draw attention to two lines: the first is in the second paragraph

"It [the CCFA] means that we are paid by the Defendant in the event of success, and if the risks in your case warrant it, we are also entitled to seek a success fee, and again payment will be made by the Defendants and not you".

The Defendants also rely on the penultimate sentence which is as follows:

"As I said from the outset of this letter, you should be assured that your relationship with this firm does not alter, you will not have to pay our fees, and we will continue to do our best to represent your interests."

The Defendants say that the first sentence they rely on indicates that neither the Claimant nor his union will be liable to pay costs and, so far as the Claimant is concerned, this is confirmed by the second sentence relied on. If these sentences mean what they say the Defendant has either been misinformed as to his liability or has been informed that he has no liability.

The Claimant's response on this document is that it is unrealistic to expect such a letter to deal with the notional liability which may arise against a receiving party under a CFA. The true position more clearly appears on the information sheet enclosed with the letter.

The information sheet

This is a three page document which purports to explain the CCFA between the Claimant's solicitors and the TGWU. The Defendants draw my attention to some of the text under the heading "How are we paid?":

"We will be paid in the event that your case is successful, as our costs will be paid by the insurers of the other party.

In the event of success, neither you nor the union will be liable to make any payment to us.

In the event that your action fails, the union will cover the expenses we have incurred on your behalf and we will not be paid for our own work.

If the action fails, then the union will cover the costs and expenses of the other side's legal representatives.

You will appreciate you will not be responsible for any of these charges."

The Defendants contend that these words also either mislead the Claimant as to his liability to pay success fees or they give him a guarantee that he is not liable to pay success fees.

The final section of the information sheet, under the heading "Your obligations" explains a number of obligations which the Claimant has to the Union the failure of which would give the solicitors a right to terminate the agreement. These are numbered 1 to 9, the first being: "If he failed to give his instructions which allow us to do our work properly", and the last being "If the union decides to withdraw legal assistance".

The Defendants point out that this section merely warns the Claimant that he may cease to have a solicitor in certain circumstances. It does not warn him, for example, that if the union does decide to withdraw legal assistance the solicitors may continue to act for him and may seek to recover from him a success fee even if that fee or part of it cannot be recovered from the opposing party.

The Claimant's case is that this document does realistically describe the Claimant's position as to costs. As with the covering letter, there is no need to deal explicitly with notional liabilities. Reliance was placed on the approach taken by Lord Denning MR in Lewis v Averay (No.2) [1973] 1 WLR 510 at 513. In that case costs were recoverable by a litigant who had been funded by the Automobile Association who had made clear to him that he "was to be indemnified in all respects by the Automobile Association so that no part of the costs of the appeal has or would have fallen on him". In that case the court still considered the litigant to be the person legally responsible for costs, vis a vis the other party albeit he would be indemnified by the Automobile Association.

For the Claimant, Mr Bacon also points out that the information sheet does deal with the notional liability implicitly: it refers to the risk assessment which the solicitors will make and send to him (if he is not at risk why send such a document?) and it explains his right to seek an assessment of their costs. The latter point is somewhat weakened for the Claimant by the full text of the statement which I now set out:

"Both you and the union are entitled to seek assessment of our charges at the end of the case. We must admit this is a rather odd regulation in that if we are successful, the Defendant will be paying our charges but nevertheless we are duty bound to provide you with this information."

Mr Bacon also relies on the "Your obligations" section of the information sheet as providing a sufficient and appropriate warning to the Claimant of the promise he made when first seeking the Union's assistance. The form which he signed at that time (15 December 1998) contained these words:

"I desire that my case be taken up by the Union and placed, if thought necessary by the Union, in the hands of solicitors it may instruct whom I hereby retain to act for me. I will co-operate with the solicitors and accept the decisions given by the union in respect of my legal obligation to pay costs or charges incurred may be withdrawn if the union so decides. Such assistance will not continue if I take the case out of the hands of the union of the solicitors.

I also understand it is necessary for me to keep in benefit in order to continue to be entitled to Legal Assistance as provided by Rule. I confirm that I agree any outstanding union contributions will be paid before any settlement cheque is released to me …"

Letter dated 12 April 2001 sent by the Claimant's solicitor to another employee suing the Defendant

This letter appears to be an earlier version of the client care letter sent to the Claimant in this case. Bond Pearce sent it to another employee a fortnight before they sent the letter I have referred to in paragraph 15, above. The Defendants claim it is relevant to the extent that it throws light upon the same CCFA relied on by the Claimant in this case. In this letter the Defendants seek to rely on bullet points which are very similar to bullet points relied on in the information sheet given to the Claimant (see para 18 above).

"We are instructed by your Union under what is called a collective conditional fee agreement. This means that:

The union will accept responsibility for the costs risk of the action.

We will be paid in the event of the case being successful by the Defendant's insurers.

You are not personally at risk for legal costs.

You have certain obligations which mean you should co-operate with us and help us put forward your case.

We may be entitled to a success fee if your case succeeds; the Defendant not you, to be responsible for the cost."

For the Claimant it is said that, although this letter is authentic it should carry minimal weight so far as the Claimant's case is concerned. Beyond that, they make the same responses as they do to the client care letter and information sheet already dealt with.

Letters between solicitors in the other employee's case

The Defendants argue that, in correspondence relating to the other employee, the Claimant's solicitors have spoken inconsistently about that employee's liability to pay costs. The first letter is dated 27 June 2002 and states amongst other things:

"Our client had therefore already been made aware of his liability to pay his own costs, ie, if he failed to pay his union subscription or failed to co-operate with his solicitors. The CCFA simply changed the funding position in that it allowed for the recovery of a success fee. Our client is never liable for this as it is only payable by the Defendants upon the successful conclusion of the matter, as is the case with every CFA"(emphasis added).

The first sentence quoted above appears to define, in terms, which are inconsistent with a valid CCFA, what the employee's liability for costs is. The last sentence states that the employee is never liable for the success fee, giving a reason which is consistent with the first sentence, ie, a reason which is inconsistent with a valid CCFA.

The letter of 27 June 2002 enclosed a copy of the other employee's application for union assistance. It seems that that letter prompted a request from the Defendant's solicitor for a copy of the CCFA. In the Claimant's solicitor's letter dated 13 August 2002 copies of the client care letter dated 12 April (to which I have already referred) and the information sheet (as to which see above) are given instead of the CCFA together with this statement:

"On the issue of liability for the success fee, we confirm that our client is liable to pay this as well as his basic costs and disbursements. However, subject to him remaining a union member and co-operating with his solicitors, his union will indemnify him in respect of that liability" (emphasis added).

The Defendants rely upon the difference between "is never liable for this" in the first letter and "is liable to pay this" in the second. They suggest that, at the very least, there must be a doubt as to what the CCFA actually provides.

The Claimants again say that I should put minimal weight on these documents since they do not relate to the Claimant in this case. They also rely upon the second letter as confirming a liability to pay costs.

Witness statement of Peter Regnier

This is a statement signed by Mr Regnier on 22 January 2002, ie long before the order for costs in this case. I do not in fact know in which proceedings the Claimant's solicitors deployed this witness statement. Mr Regnier describes himself as a professionally qualified accountant employed by the TGWU as their Executive Financial Director. Most of its paragraphs seek to justify the amount of the sum being awarded to a claimant under Section 30 of the Access to Justice Act 1999 (ie the so called self insurance premium which litigants who are funded by certain membership organisations are allowed in certain circumstances to recover).

The Defendants rely on paragraph 3 of Mr Regnier's statement which, they say, appears to suggest that the success fee payable under the CCFA is recoverable by the trade union under Section 30 of the Access to Justice Act. It is convenient to set out paragraphs 2, 3 and 4 of the statement:

"(2) I make this statement in relation to the Transport and General Worker's Union collective conditional fee agreement.

(3) The Transport and General Workers Union is a body prescribed for the purposes of Section 30 of the Access to Justice Act 1999. The section deals with the recovery of costs where a body undertakes to meet cost liabilities to its members. As part of the collective conditional fee agreement provision is made for the collection of an "additional liability" being both the solicitors' percentage increase in costs ("success fee"), and also the additional amount in respect of the provision made by ourselves to cover opponents fees and disbursement ("premium or premium equivalent").

(4) The definition of the premium in the agreement is as follows:

"Premium means an amount in respect of the provision made by the funder against the risk of having to meet the member's or other personal liabilities to pay the opponent's costs."

Counsel for the Claimant did not comment expressly on this witness statement. I infer that they concede that Mr Regnier is who the statement says he is and that he did make this statement: however, they do not concede that this statement supports the Defendant's challenge to the CCFA.

THE INDEMNITY PRINCIPLE

For the Claimant, Mr Bacon argued that a reasonable success fee would still be recoverable in this case even if I were to rule that the Claimant had no liability to pay any costs. There is no doubt that statutes can and have created exceptions to the indemnity principle. A particularly relevant example here is made by Section 30 of the Access to Justice Act: the costs payable to a party who is a member of certain membership organisations may in certain circumstances include a sum in respect of an undertaking given by the organisation to meet costs liabilities in the proceedings.

None of the primary legislation refers to collective conditional fee agreements. Mr Bacon argues that the exception is created by the CCFA Regulations themselves. He argues that Parliament has clearly intended that as from 30 November 2000 (the date of their implementation) parties are entitled to conduct litigation under the terms of a CCFA under which the liability for costs rests with a body such as a trade union rather than the individual litigant. It is implicit in such secondary legislation that a party to such an agreement who was awarded costs should be entitled to recover costs notwithstanding that he may have no liability to pay them. Reliance was placed upon some wide words in paragraph 33 of the Government's conclusions to the Collective Conditional Fee Agreement Consultation Paper which was published in September 2000.

"Although the introduction of CCFA Regulations under Section 58 of the Courts and Legal Services Act 1990 (as amended) abrogates the indemnity principle for CCFAs, the Government is persuaded that there is no longer any justification for the operation of the principle when assessing costs no matter how funded." (Emphasis added)

Mr Bacon denied Mr Browne's submission that he was relying on these words out of context (see below).

In Mr Bacon's submission the exception is not dependent upon the implementation of Section 31 of the Access to Justice Act, a provision which, both sides accept, is not yet in force.

For the Defendant, Mr Browne relies on some passages in Butterworths Costs and, in particular, the following passage which is taken from page E[193]:

"There is a doubt as to the recovery of costs under a CCFA in the absence of the commencement of AJA 1999, s31 which would remove the indemnity principle. No changes to the CPR have been made to accommodate CCFAs."

He also submits that the words that Mr Bacon quoted from the consultation paper have been plucked out of context. He draws my attention to the next paragraph which is as follows:

"34. Section 31 of the Access to Justice Act (when commenced) amends Section 51 of the Supreme Court Act 1981 (Costs) to provide that the amount recovered by way of costs may not be limited to "what would have been payable by him (the client) to them (his lawyers) if he had not been awarded costs"."

CONCLUSIONS