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

IN THE HIGH COURT OF JUSTICE
SUPREME COURT COSTS OFFICE

		Clifford's Inn, Fetter Lane London, EC4A 1DQ
		8th November 2006

Master Rogers




THE ISSUE

1. The narrow, but important, issue in this matter, heard by me as a preliminary issue, was whether the Defendant had achieved a "win" for the purposes of the CFA under which its solicitors were acting for the relevant period.   If it did not, then it is common ground that the CFA fails, and the Defendant is not entitled to any costs, save only for certain costs which were not covered by the CFA.

THE BACKGROUND

2. The Claimants need no introduction.   They own a mansion at Rowneybury, near Sawbridgeworth in Hertfordshire, popularly known in certain elements of the press as "Beckingham Palace".
3. The Defendant is a company set up in 2000 by Mr Nick Stern, who remains its sole director and employee.   The business of the Defendant is that of photographic journalism, and it receives that business in one of two main ways.   The first is that it receives commissions from national and other press, regarding specific photographic assignments.   When the assignment is complete, the photographs are sold on to the publication, often with exclusive rights.
4. The second way in which the company operates is to undertake investigative reporting of his own initiative, which would involve investigating a particular story, taking supporting photographs and seeking to interest a publication in that story.
5. That indeed is what happened in this case.  The Defendant, believing that certain developments at "Beckingham Palace" were being carried out, perhaps without the benefit of planning permission, took aerial photographs of the property, which were subsequently sold.
6. When the subsequent story was run by the media, the Claimants, who had previously had a good relationship with Mr Stern and his company via Victoria Beckham's father, immediately threatened legal proceedings against the Defendant for breach of their human rights, and invasion of their privacy.
7. The Claimant initiated proceedings in January 2005, on 14 February 2005, the Defendant, who by this time had instructed as its solicitors, Messrs Carter Ruck, instructed that firm to make an offer to the Claimant to settle the matter.
8. The offer which was made was that the Defendant was willing to take the allegedly offending photographs off its website, and undertake not to publish them elsewhere, as well as paying a modest amount of compensation.
9. Although I will set out the exact detail of that letter which was in Part 36 form, and which was sent on 14 February 2005 later in this judgment, it is important to emphasise that the offer contained therein was never withdrawn, notwithstanding Part 36 offers on behalf of the Claimants for decreasing amounts as the litigation wore on.
10. In fact that litigation was marked by numerous requests for additional information pursuant to Part 18 from the Claimants, the avowed purpose of which was to try to find out more about the profit which the Defendant might have made, from the sale of the photographs complained of.
11. The trial of the Claimant's action was fixed to take place during February 2006, over four days in the High Court, but on 6 December 2005, the Claimants' solicitors applied to the court for permission to accept the £6,000 paid into court by the Defendant's solicitors pursuant to their Part 36 offer on 15 February, out of time, and for an order that the Defendant should pay all their costs.
12. That application came before Master Turner on 26 January 2006, resulting in the following order being made:

"UPON HEARING Counsel for the Claimants and Counsel for the Defendant

AND UPON THE DEFENDANT undertaking that it will:

1.                     Not further publish, licence or distribute or otherwise exploit the photographs taken of the Claimants' property that were published by the Defendant, without the express permission of the Claimants or an authorised representative of the Claimants;

2.                     Not take any further aerial photographs of the Claimants' property which are the same as, colourably similar to, those complained of without the express permission of the Claimants or an authorised representative of the Claimants;

3.                     Remove the photographs of the Claimants' property from its website forthwith;

4.                     Deliver up the photographs (whether the originals or any copies) forthwith to Harbottle & Lewis LLP.

IT IS ORDERED THAT:

1.                     The Claimants be given permission to accept the Defendant's Part 36 Offer made on 14 February 2005 and the Defendant's Part 36 Payment made on 15 February 2005, out of time;

2.                     The Claimants be given permission to file a Notice of Acceptance and Request for Payment Form with the Court and the Court Funds Office and to serve a copy on the Defendant in respect of the Defendant's Payment made into Court on 15 February 2005 with the principal sum of £6,000 being paid out to Harbottle & Lewis LLP and the interest which has accrued thereon being paid out to Carter-Ruck and the Court Funds Office shall be responsible for arranging the payment out of Court;

3.                     The Defendant shall pay the Claimants' costs of the proceedings up to and including 25 April 2005, such costs to be the subject of detailed assessment, if not agreed;

4.                     The Claimants shall pay the Defendant's costs from 26 April 2005, such costs to be the subject of detailed assessment, if not agreed, to include for the avoidance of doubt the costs of the Claimants' application dated 13 December 2005;

5.                     The trial which is listed for 27 February 2006 with a time estimate of 4-5 days be vacated and all further proceedings in this action be stayed except for the purpose of carrying out the terms of settlement and for this purpose the parties are at liberty to apply."

13. It will be noted that the Claimants did not succeed in obtaining an order for all their costs to be paid by the Defendant, but equally, the Defendant did not obtain what is often referred to as the normal order in a situation such as this, namely that it should pay the Claimants' costs down to the date of payment in, and that the Claimants should pay its costs from that date, or least from 21 days thereafter. Instead, as paragraphs 3 and 4 of the Order make clear, the Defendant was ordered to pay the Claimants' costs, down to and including 25 April 2005, and the Claimants were ordered to pay the Defendant's costs from 26 April 2005, to include an application made by the Claimants on 13 December 2005.
14. The Claimants' costs, which I was told at the hearing have been agreed, and may well have been paid, were claimed in the sum of £17,737.66, whereas the Defendant's costs are claimed in the sum of £102,707.13.

THE DETAILED ASSESSMENT PROCEEDINGS

15. In their Points of Dispute to the Defendant's bill the Claimants raise three preliminary issues.   The first is whether the Defendant had "won" within the very restricted meaning given to that expression in its CFA with its solicitors; (2) whether there had been a breach of Regulations 4(2)(c) and 4(2)(d) of the CFA Regulations 2000 in relation to insurance and alternative funding for the claim; and (3) proportionality.
16. I directed that the first two of these Points of Dispute should be tried as preliminary issues prior to the assessment of the Defendant's bill.    The third preliminary issue seems to me to be more appropriate for consideration at the outset of the detailed assessment.
17. The second preliminary issue was quickly abandoned by Mr Mallalieu, who appeared on behalf of the Claimants, when I made it clear to him that, having been through the relevant correspondence, I was satisfied that there was nothing in the point which needed to be followed up, and certainly nothing that made me feel that the Defendant's solicitors should be put to their election to produce supporting documentation.  Accordingly, this judgment is restricted to the first preliminary issue.

THE DEFENDANT'S CFA WITH ITS SOLICITORS

18. This is dated 6 April 2005, which it is to be observed, is outside the 21 day period for acceptance of the Defendant's Part 36 offer and payment into court.   It was agreed between the advocates before me that the only sections that I need to be concerned with were paragraphs 3(i), (l) and (m), which I set out below, though Mr Bacon had submitted that the definition of "damages" in clause 3(e) was also important in construing clause 3(m):

"(i)       Lose

You have not "won" as defined in "m".

(l)                     Part 36 offers or payments

In the event that you decide to make a Part 36 offer and/or Part 36 payment, which your Opponent does not accept, then in the event that the court awards the sum of damages equal to or less than the amount in the Part 36 offer then we would be entitled to charge our basic charges plus the success fee in respect of the costs since the date of the Part 36 offer/payment.

(m)       Win

The case is finally decided in your favour, whether either:

(i)      by the court dismissing the claim or your Opponent discontinuing the claim; or

(ii)      by the claim being settled on terms which do not include the payment by you of a sum equal to or more than £6,000 by way of compensation;  or

(iii)     where the court awards a sum of damages of less than or equal to the Part 36 offer and payment you have made dated 15 February 2005 (in which case then we would be entitled to charge our basic charges plus a success fee in respect of the costs from the date of the Part 36 offer/payment).

"Finally" means that your Opponent:

·                    is not allowed to appeal against the court's decision;  or

·                    has not appealed in time;  or

·                    has lost any appeal"

COUNSEL'S CFA WITH THE SOLICITORS

19. Junior Counsel, Mr David Sherborne, entered into a CFA with Carter Ruck, paragraph 19 of which reads as follows:

"19.

1)                     "Success" means the same as "win", as defined in condition 3(m) of the Conditional Fee Agreement between the solicitor and the client dated 6 April 2005 save that in relation to sub-paragraph (ii) therein, a "win" is defined for the purposes of this Conditional Fee Agreement as "by the claim being settled on terms which do not include the payment by you of a sum more than (and not a sum equal to or less than) £6,000 by way of compensation".

2)                     Subject to paragraphs 20, 23 & 26 hereof, in the event of success the solicitor will pay counsel his normal and success fees.

3)                     If the client is successful at an interim hearing counsel may apply for summary assessment of solicitor's basics costs and counsel's normal fees."

20. It is to be immediately noted that the wording of paragraph 19(1) is subtly different from the wording of paragraph 2(m)(iii) in the CFA between the Defendant and its solicitors.   As a result of that difference Mr Mallalieu, on behalf of the Claimants, abandoned his previous submission made prior to seeing that document, that the "vice", which defeated the solicitor's CFA with its client, also tainted this CFA and accordingly, subject to assessment, he accepted that the Claimants were liable to pay Mr Sherborne's fees as claimed and subject to the CFA. (But of course questions would be subject to assessment by me).
21. It is I think vital that I set out in full the letter sent by the Defendant's solicitors to the Claimants' solicitors on 14 February 2006, which reads as follows:

"Harbottle & Lewis                              Without Prejudice

DX 44617 Mayfair                               Save as to Costs

                                                                        Part 36 Offer and Payment

Dear Sirs

First News Limited and David and Victoria Beckham

In accordance with Part 36 of the Civil Procedure Rules, our client is prepared to make the following offer in full and final settlement of your clients' claim against it:

1.                     The payment of £6,000 in damages.  (We attach, by way of service a copy of the payment notice and receipt and confirm that this sum has been paid into court today);

2.                     To remove the photographs from our client's website (as our client has already done);

3.                     To undertake not to further publish, licence or distribute or otherwise exploit the Photographs, and not to take any further aerial photographs of your client's property which are the same as, or colourably similar to, those complained of without the express permission of your clients or an authorised representative of your clients.

4.                     To deliver up the Photographs (whether originals or copies);

5.                     Payment of your clients' costs, on the standard basis, to be assessed if not agreed.   We expressly reserve the right to draw to the attention of the Costs Judge the correspondence in this matter when the question of costs falls to be considered.

Pursuant to Part 36.5(6)(a) we notify you that this offer will remain open for acceptance for 21 days.  We are also obliged to inform you, pursuant to Part 36.5(6)(b) that, after the said 21 day period, your clients will only be able to accept the offer if the parties agree the liability for costs or if the Court gives permission.

If your clients give notice of the acceptance of the Part 36 Payment, then pursuant to Part 36.4(3)(b) they will be treated as also accepting the Part 36 offer.

We draw your attention to Part 36.20 and put you on notice that should the offer not be accepted by your clients and should at trial your clients fail to better the Part 36 payment or fail to obtain a judgment which is more advantageous than the Part 36 Offer, our client will seek its costs incurred after the latest date on which the payment or offer could have been accepted without needing the permission of the Court.

Kindly acknowledge receipt of this letter.

Yours faithfully

Carter-Ruck"

22. In addition it is I think important to note the form of Application Notice, which the Claimants' solicitors issued on 6 December 2005, which is set out below:

"Part A

We, Harbottle and Lewis LLP, on behalf of the Claimants intend to apply for an order, a draft of which is attached, for permission to accept the Defendant's Part 36 Offer and Payment more than 21 days after the date that they were made and for the Court to make an Order as to costs

because the parties do not agree the liability for costs and as a consequence the permission of the Court is sought pursuant to CPR part 36.11(2)(b)(ii).  In the circumstances, the Court is also asked to make an Order as to costs pursuant to CPR Part 36.11(3).

We wish to have the application dealt with by Master Turner prior to the hearing of the Defendant's application dated 10 November 2005.

Part B

We wish to rely on the attached Witness Statement of Louise Justine Prince dated 5 December 2005".

23. The preliminary issue was admirably argued before me by Mr Roger Mallalieu of Counsel, on behalf of the Claimant, and Mr Nicholas Bacon of Counsel, on behalf of the Defendant, both of whom, in advance, put in, pursuant to my order to that effect, helpfully full skeletons.  In addition I was referred to a number of cases, which it was thought might help me, although both advocates agreed that there was no case precisely on this particular point, which could be conclusive one way or the other. Those cases were Flynn v Scougall [2004] 1 WLR 3069; Cumper v Pothecary [1941] 2 KB 58 and A. Martin French v Kingswood Hill Ltd [1961] 1 QB 96. In addition I was referred to the second edition of the Oxford English Dictionary and Jowitt's Dictionary of English Law, 2^nd Edition.
24. It was common ground between the advocates that if the Defendant could not bring itself within the definition of "win", then it must necessarily fall within the definition of "lose" in paragraph 3(i) quoted above in paragraph 18; there was no middle way.  It was ultimately agreed that paragraph m(i) was certainly not applicable, nor was m(ii), although Mr Mallalieu in his submissions referred me to the wording of that sub-paragraph as an aid to construction of m(iii), which as I have said, ultimately was the battleground between the two advocates, and it might therefore be convenient to re-quote that paragraph at this point:

"m  (iii)             where the Court awards a sum of damages of less than or equal to the Part 36 offer and payment you have made dated 15 February 2005 ..."

THE CLAIMANTS' SUBMISSIONS

25. Mr Mallalieu put his case very simply saying that the Court had not made any award in favour of the Claimants, and accordingly, the Defendant had not achieved a win within the meaning of that sub-paragraph.  Accordingly the CFA was unenforceable, and the Defendant's solicitors could claim nothing for work done during its currency.
26. The thrust of Mr Mallalieu's argument was that the letter of 14 February 2005, with its linked payment in, amounted to an offer to settle which was never withdrawn, and which was ultimately accepted, when pursuant to Master Turner's order the Claimants' solicitors duly accepted that offer.  He made the point that at no point had that offer been withdrawn.  The Claimants needed permission to accept it, because they wished to do so outside the primary 21 day period (which by consent had been extended until, I believe, 24 March 2006).
27. Mr Mallalieu said that all that Master Turner did was to give the Claimants the permission they sought in their Application Notice to accept the £6,000 in Court and dealt with the costs consequences; he did not "award" the Claimants anything.  In answer to a query from me during his reply, Mr Mallalieu was inclined to accept that perhaps Master Turner did "award" costs to the Claimant, but he said that did not undermine his principal argument.
28. Mr Mallalieu submitted that the case of A. Martin French v Kingswood Hill Ltd supported that submission. According to the head note of that case, the Plaintiffs firm of surveyors claimed £1,320 against the Defendants as the balance of an account for professional services. The Defendants counter- claimed £2,960 as damages for negligence and breach of duty, relied on their counterclaim as an equitable set off, and paid £920 into court and RSC Order 22 Rule 1(1).  The Plaintiffs thereupon took this sum out of court, and amended their defence to counterclaim, by alleging that by reason of the payment into court the cause of action relied on by the Defendants by way of set off and counterclaim had been satisfied and extinguished. However on the trial of an issue, an official referee gave judgment for the Defendants, in effect holding that the counterclaim survived, and his decision was upheld by the Court of Appeal, (it is accepted that even before the introduction of CPR the relevant rule in the RSC was amended to make the recurrence of the result in this case impossible), but Mr Mallalieu submitted that that did not in any way diminish from the strength of the precedent value of the case, upon which he relied. 
29. The reserved judgment of the Court was given by Devlin LJ, and the second paragraph is the one upon which Mr Mallalieu relies reads:

"But the conclusion of an action by payment by payment into court is something quite different from its conclusion by a judgment.  In Coote v. Ford Stirling J clearly explained the effect upon a cause of action of the taking out of money which has been paid in in respect of it.  The payment in implies no admission about the merits of the cause of action; there has been no adjudication upon it and therefore no estoppel is created.  What has happened is simply that the claim arising out of the cause of action has been settled, just as it would have been settled by a payment under a compromise".

30. As his skeleton makes clear, Mr Mallalieu strongly submitted that when the matter came before Master Turner, the Master had no power to award anything.  He was asked to allow the Claimants to withdraw the then agreed figure of £6,000 from Court, and deal with the costs consequences of an application having to be made, it had to be made of course because of the wording of CPR 36.11, which reads as follows:

"36.11 – (1)     A claimant may accept a Part 36 offer or a Part 36 payment made not less than 21 days before the start of the trial without needing the court's permission if he gives the defendant written notice of acceptance not later than 21 days after the offer or payment was made

(Rule 36.13 sets out the costs consequences of accepting the defendant's offer or payment without needing the permission of the court)

(2)   if -

(a)          a defendant's Part 36 offer or Part 36 payment is made less than 21 days before the start of the trial; or

(b)          the claimant does not accept it within the period specified at paragraph 1 –

(i)      if the parties agree the liability for costs, the claimant may accept the offer or payment without needing the permission of the court;

(ii)         if the parties do not agree the liability for costs the claimant my only accept the offer or payment with the permission of the court".

31. The heart of Mr Mallalieu's submissions is really to be found in paragraphs 19 to 21 of his skeleton, which read:

"19                   Master Turner was not awarding damages – indeed, he was not in a position to do so, nor was he asked to do so.  That would have occurred at trial (set for 4–5 days on the 27^th February 2006 before a High Court judge).  Master Turner had no input into the £6,000 figure – he simply decided whether he would allow the settlement to occur out of time and, more importantly what the consequences of that were to be.

20                    Moreover, the distinction between an award of damages and a settlement is fundamental.  If the Defendant here was unhappy with Master Turner's decision it could appeal his decision to allow the offer to be accepted out of time.  What it could not appeal was the £6,000 figure.  By contrast, if Master Turner had been seized of the issue of damages and had awarded the Claimants £6,000 or some other figure then that award could have been appealed.  Judicial involvement in deciding the amount payable (and not merely the consequences) is a fundamental distinction between an award and a settlement.

21          This is abundantly obvious.  A payment into court is no more than an offer to dispose of the claim on terms – to achieve a settlement – the very thing that m(ii) is drafted to address.  It has a fundamental distinction from an award by a court because it implies no admission or judicial finding about the merits of the claim and there is no adjudication on those merits.  As the Defendant states in the Points of Dispute "the Defendant's payment into court was without prejudice to its position that the claim was unmeritorious".  No judicial ruling has ever been made on the merits of the claim per se or the amount of damages sought".

THE DEFENDANT'S SUBMISSIONS

32. The Defendant, through Mr Bacon, submitted that the Court had made an award of £6,000 damages to the Claimants and accordingly, the Defendant came within paragraph m(iii) and that the CFA was valid and enforceable.  In his skeleton he accepted that the word "award" is not defined in the CFA, but he contended that it was clearly covered by Master Turner's order.  He relied on the following extracts from the Oxford English Dictionary 2^nd Edition of the word "award":

"1.        To examine the matter and adjudicate upon its merits; to decide, determine after consideration or deliberation; to grant or assign (to a person) by judicial or deliberate decision, to a judge; and "judicial decision".

33. He strongly contended that Master Turner had indeed made a judicial decision as he must have done if, as indeed happened, there was a two hour argument before Master Turner with the Defendant represented by Leading Counsel.
34. Mr Bacon submitted that his analysis was conclusive because of the definition of "damages" in Clause 3e "money that your opponents win either by a court decision or settlement".
35. He suggested that this interpretation was supported by the judgment of May LJ, in the case of Flynn v Scougall quoted above. He relied in particular on paragraphs 26 and 27 of that judgment, which I set out below:

"26       The rules use the language of offer and acceptance and contain provisions relating to the withdrawal of both a Part 36 payment and a Part 36 offer.  Further, if an offer within Part 36 is accepted in accordance with Part 36, a compromise results.  But as Goddard LJ said in Cumper v Pothecary [1941] 2 KB 58, 67, "there is nothing contractual about payment into court.  It is wholly a procedural matter and has no true analogy to a settlement arranged between the parties out of court, which, of course, does constitute a contract".  This, in my view, remains the position with Part 36 payments.  This is not, I think, inconsistent with the decision in Scammell v Dicker [2001] 1 WLR 631, which concerned Part 36 offers for which the analogy with contract is closer.  In so far as Henriques J may have expressed a different view in Chainrai v Boston (unreported) 11 July 2002, I am inclined to disagree.  The facts and issue in that case were most unusual and his view on this point did not, I think, dictate the result.

27                    Whether or not the structure of Part 36 payments is to be characterised as contractual, the issue in the present appeal, as in Scammell v Dicker [2001] 1 WLR 631, concerns withdrawal, a Part 36 has express provisions relating to withdrawal of both a Part 36 offer and a Part 36 payment.  A defendant who wishes to make a Part 36 payment has to make an offer to which the relevant provisions of Part 36 are attached.  One of these is that a Part 36 payment may be withdrawn or reduced only with the permission of the court:  rule 36.6(5).  In my judgment, this provision is clear and it relates to the offer which the Part 36 payment comprises.  I reject the submission that the offer and the payment into court are separate and that rule 36.6(5) relates to the latter but not to the former.  On the contrary, the defendant has chosen to make on offer by means of a Part 36 payment with an attribute that it may be withdrawn or reduced only with the court's permission.  By contrast, the provision which relates to the withdrawal of a Part 36 offer is unqualified".

36. The case referred to in Flynn v Scougall of  Cumper v Pothercary, also quoted above, was in his submission equally helpful to him, and he referred me in particular to a paragraph on page 67 of the report in the judgment Lord Justice Goddard (as he then was) which reads:

"The answer to his contention is that there is nothing contractual about payment into court.  It is wholly a procedural matter and has no true analogy to a settlement arranged between the parties out of court which of course does constitute a contract.  When once the seven days have expired the plaintiff can only get the money if he can obtain an order and before the court makes an order it must consider whether it is right to do so".

37. Indeed, Lord Justice Goddard seems to go further in the next paragraph, when he seems to be saying that it might be open to the Court to direct that a sum different from that which the Claimant seeks to withdraw from Court could be ordered when he says:

"We can see no ground for putting such a limit on the powers of the court.  If the court can in any circumstances refuse an order it is plain that a making or refusing an order the court must be action judicially and not administerily".

38. As I have said, I was also referred to Jowitt's Judicial Dictionary of the word award, and the extract upon which Mr Bacon relied was:  "any words expressive of a decision are an award.  Recitals are unnecessary". In the course of the submissions to me, I asked if this case was analogous to the situation where a Judge was asked to approve a settlement of a personal injury or clinical negligence case on behalf of a minor or a patient.  There of course, a proposed settlement figure, which the Defendant has agreed to pay, is put before the Judge with an opinion not seen by the Defendant, which justifies the decision of the Claimant's solicitors to recommend the acceptance of that sum.  The Judge can only do one of two things at such a hearing.  He can either approve the proposed settlement, which is what nearly always happens, or he can not approve it but merely send the parties away to think again, (and presumably to increase the settlement figure), what he cannot do is to tell the parties that they must settle for a different figure, and substitute that figure for the one that the parties have agreed.  Therefore there is no "award".
39. Mr Mallalieu was inclined to think that this was a good analogy, but Mr Bacon was more doubtful.

MY DECISION

40. Having given the matter careful thought, I have come to the conclusion that the Claimants' submissions are to be preferred.  In my judgment, the Defendant was prepared to pay £6,000 to settle the Claimant's claim and no more.  True, the substantial costs actually incurred in reaching such a final settlement were outside his control, but there was an offer made on 14 February 2005, which ultimately was accepted by the Claimants pursuant to the order of Master Turner of 26 January 2006.  In my opinion Master Turner did not "award" any sum to the Claimants, he simply gave them permission to accept what had been on offer since the previous 15 February, and dealt with the costs' consequences of that decision being taken outside the primary 21 day period, within which no such permission from the Court would have been required.
41. Accordingly, I find for the Claimants on this preliminary issue.  The consequences of that decision will need to be worked out at the hearing when this judgment is handed down, but as already indicated, it is accepted by the Claimants that they are liable for the fees of Mr Jeremy Morgan QC, who appeared on behalf of the Defendant (but not with the benefit of a CFA) at the hearing before Master Turner, and also the fees of Mr Sherborne and any other disbursements such as court fees, etc.
42. Since however these appear to total the gross sum of £9,467.38 which is less than the amount of costs agreed to be payable to the Claimants, (and possibly already paid to them), there would seem to be no necessity for any further steps to be taken in the detailed assessment of the Defendant's bill.
43. However as indicated, all these matters can be canvassed at the time that this judgment is formally handed down.