CHAMPERTY AND MAINTENANCE: A NEW CASE

I am currently on my Autumn Tour on the extension of fixed costs as proposed by Lord Justice Jackson and associated matters until Monday 16 October and these will be my only courses on this subject until at least September 2018.

You can book here.

All of these matters are dealt with in my new book – Personal Injury Small Claims, Portals and Fixed Costs, running to three volumes and 1,300 pages and costing £80.00 and available from me here or Amazon here.

In Casehub Ltd v Wolf Cola Ltd [2017] EWHC 1169 (Ch)

the Chancery Division of the High Court had a rare opportunity to consider the current state of the law in relation to maintenance and champerty, and pointed out that as these concepts are ones of public policy, the law must be kept under review as public policy changes.

The High Court rejected the Defendant’s submission that the Claimant company bringing claims assigned to it by purchase amounted to champerty and maintenance.

It also held that the cancellation fees in the contract between the individual consumers and the Defendant were part of the price payable under those contracts and were therefore exempt from assessment as to their fairness under the Consumer Rights Act 2015.

The Claimant is a company which builds consumer group actions online by entering into claim purchase agreements whereby it takes an assignment of consumers’ claims to recover money alleged to have been unlawfully charged by third parties.

It then aggregates the claims into a single portfolio and, once that portfolio reaches a certain threshold, brings a claim in its own name against the third party.

The Defendant sells service based to business and individuals and charges £20.00 a month for a minimum fixed term of 12 months and if a customer terminates its agreement within that term, a cancelation fee is payable amounting to the rest of the term less the 10% discount which is said to reflect the fact that the customer is paying early.

The system did not work and the customers terminated their agreement within the first month and were charged the whole sum, less the 10% discount.

One form of agreement between the claimant and the consumers was a 40% contingency fee, payable only in the event of recovery of the money and another form was a flat fee of £40.00, payable in any event with the consumers receiving everything else if recovery was achieved.

The Defendant submitted that:

(1)          the assignment is of a bare cause of action and, as such, is champertous;

(2)          the assignment is not conducive to the administration of justice;

(3)          the Claimant has taken too much in damages;

(4)          the assignment of a claim which does not exist and which may never exist is not possible; and

(5)          the Claimant has not taken an assignment of the whole of the claim.

The Claimant submitted that:

(1)          the assignment is not champertous and does not fall foul of the rule against maintenance;

(2)          the scope of the rules against champerty and maintenance is not to be extended;

(3)          public policy is in favour of upholding the assignment;

(4)          EU law requires that national rules do not interfere with the exercise of EU rights;

(5)          the rules against champerty and maintenance are inconsistent with both the assignor’s and the claimant’s right to property and thus inconsistent with Article1 of Protocol 1 of the European Convention on Human Rights (“ECHR”); and

(6)          it is not open to the defendant to invoke the law on champerty and maintenance.

The High Court then reviewed the law and cases in relation to champerty and maintenance (Paragraphs 15 to 26).

Taking into account all aspects of the claims purchase agreements between the Claimant and the individual consumers, there was no “wanton and officious meddling” by the Claimant in the dispute between the consumers and the Defendant.

The Claimant had a legitimate and genuine commercial interest in being able to pursue the restitutionary claims assigned to it, in order to protect certain liquidated sums that it had acquired under the agreement.

This is the first English and Welsh authority holding at the assignment of a restitutionary claim for money had and received is not an assignment of a bare cause of action liable to offend the rules on maintenance and champerty.

This is the case even where liability is disputed.

The High Court also held that there was strong public policy grounds in favour of upholding the assignment, including the fact that the claims were small and, arguably, not worth pursuing on their own, and therefore the assignment enhanced access to justice for the consumer.

Here, the assignment redressed the inequality of arms between the defendant and the individual customers.

The Defendant’s argument that there were alternative means of enabling the customers to pursue their claims, for example by third party financing or with “No Win, No Fee” Agreements was not logical as it did not follow from that that other alternative arrangements should be prevented.

The courts recognise the need for innovative but responsible ways for increasing access to justice for those who could not otherwise afford it.

The court also held that the Claimant was not providing legal services within the meaning of Section 13 of the Legal Services Act 2007, but rather was acting in its capacity as a litigant seeking to enforce its assigned right to recover the charges in question.

Neither did the assignment allow the Claimant to get round the rules on costs as the Claimant could be made the subject of an adverse Costs Order and could be ordered to provide security for the Defendant’s costs in circumstances where an individual customer would not be ordered to provide security.

The High Court found that a charging of a 40% fee was lawful and reasonable, although it noted that in these cases the customer had the option of paying 40% of the total sum recovered or paying a fixed fee.

The Defendant also submitted that the representative action provisions in CPR 19.6 are not available to the Claimant in circumstances where the class members have entered into separate, but identical, contracts and may have lost different, but ascertainable amounts.

CPR 19.6 reads:

“Representative parties with same interest

19.6 (1) Where more than one person has the same interest in a claim –

(a) the claim may be begun; or

(b) the court may order that the claim be continued,

by or against one or more of the persons who have the same interest as representatives of any other persons who have that interest.

…“.

In fact, the court held here that it was not a representative action as the Claimant is bringing one claim in its own name.

The court declined to rule on what the position would be had the Claimants been bringing these claims together through, for example, a solicitor.

The Consumer Rights Act 2015 implements the Unfair Contract Terms Directive (93/13/EEC).

The High Court was bound to follow the decision of the Supreme Court in

Office of Fair Trading v Abbey National plc and others [2009] UKSC 6

and declined to discuss whether subsequent decisions of the European Court of Justice require a different interpretation.

It will require a further case to come before the Supreme Court before there is a substantive review of the law in this field.

Comment

A welcome and sensible decision. It is about time that the concept of champerty and maintenance, along with the Indemnity Principle, finally killed off.

The decision is also interesting in that it upholds a 40% deduction from damages, which is of course precisely the sum I advise under the Underwoods Method in personal injury and other cases.

PERSONAL INJURY: SEEING CLIENT, FIXED COSTS, SCOPE OF RETAINER, STIRRING UP CLAIMS

I am currently on my Autumn Tour on the extension of fixed costs as proposed by Lord Justice Jackson and associated matters until Monday 16 October and these will be my only courses on this subject until at least September 2018.

You can book here.

All of these matters are dealt with in my new book – Personal Injury Small Claims, Portals and Fixed Costs, running to three volumes and 1,300 pages and costing £80.00 and available from me here or Amazon here.

In Thomas v Hugh James Ford Simey Solicitors [2017] EWCA Civ 1303

the Court of Appeal upheld a first instance decision dismissing the claimant’s allegation of professional negligence in relation to under-claiming damages in a Vibration White Finger claim.

The point of principle identified by the Court of Appeal was whether solicitors acting in a high volume, Fixed Costs Scheme for low value personal injury cases, are under a duty to advise about Heads of Claim which the client has said he does not wish to pursue and for which he says that he cannot provide supporting evidence.

Fairly obviously the answer is “No” and that must be the case in those circumstances, even in a non-fixed costs high value claim.

However the case is noteworthy for a number of observations made by the Court of Appeal.

The Court specifically mentioned the fact that the solicitors met the client and it sets out the time spent – see paragraphs 13 and 17.

Indeed it was this fact that enabled the Court of Appeal to distinguish the cases of

Raleys Solicitors v Barnaby [2014] EWCA Civ 686; and

Procter v Raleys Solicitors [2015] EWCA Civ 400.

The Court of Appeal said:

“But those two authorities are a far cry from the present case. In both Barnaby and Procter the solicitors’ treatment of the case was perfunctory. In neither of those cases did the solicitors even trouble to meet their client.” (Paragraph 44).

“In the present case, unlike Barnaby and Procter, the defendant solicitors did take the trouble to meet their client. Indeed, Ms Kinsey had two separate meetings with the claimant.” (Paragraph 47).

The Court of Appeal was also highly critical of the new firm of solicitors Mellor Hargreaves, now in administration, for giving the Claimant information which “bred a sense of grievance such that he is prepared to advance incorrect assertions”.

“The civil justice system exists to enable injured parties to recover compensation for genuine wrongs. It does not exist to service artificial claims stirred up by advertisements.” (Paragraph 52).

“What is regrettable, however, is that a second firm of solicitors then recruited the claimant to bring an action against the first solicitors in order to ‘top up’ his award. The information given to the claimant by the second firm of solicitors “turned his head” so that he was “prepared to advance incorrect assertions.” (Finding (ii)) (Paragraph 51).

The reference to the solicitors recruiting the client, rather than the client instructing the solicitors is interesting and significant, reflecting the inversion, many would say perversion, of the traditional position.

The decision is also significant for its recognition of the reality of low value fixed costs claims. It should be emphasised that this was not a CPR 45.29 fixed costs claim, but rather a claim under the Claim Handling Arrangement set up by the Department of Trade and Industry in relation to Vibration White Finger claims.

The Claimant solicitors received just £607.00.

At paragraph 46 the Court of Appeal said:

“46. This court has, therefore, already recognised the need to adopt a realistic standard when assessing the performance of solicitors conducting litigation under a high volume, low cost commoditised scheme. Such schemes may be the only practicable way of facilitating access to justice in such cases at proportionate costs. Therefore, no-one should belittle those schemes. The solicitors must still exercise reasonable skill and care in advising clients and pursuing claims. But the solicitors cannot be expected to turn over every stone and to pursue avenues of enquiry which the client has closed down.”

Scope of retainer

The Court of Appeal held that an adult of full capacity has autonomy over her or his case and that a solicitor is “not necessarily under a duty to challenge the decision or to try to change the client’s mind.”

The Court of Appeal reviewed the law and said:

“33. It is axiomatic that the contract of retainer defines the scope of a solicitor’s duties. There are many reported cases on the question how far the solicitor should go beyond the strict confines of his retainer. Both counsel in their supplemental skeleton arguments (lodged on the day after the appeal) helpfully cited examples and I bear those examples in mind. The Court of Appeal reviewed some of those authorities in Minkin v Landsberg [2015] EWCA Civ 1152: [2016] 1 WLR 1489 at [33] – [38]. Mr Pooles relies upon that passage.

34. In the present case, the problem is the opposite of that discussed in the Minkin line of authorities. The question is not how far a solicitor should travel beyond the confines of the retainer. The question is whether the solicitor should fulfil the original retainer, in circumstances where the client has closed down one avenue of enquiry. As Henderson LJ observed during argument, the issue concerns client autonomy.”

Comment

This is a significant and welcome decision dealing with several issues and will have increased relevance as fixed costs are extended.

Firstly it recognises that physically meeting with clients is a key and distinguishing feature and, as other cases have shown, solicitors who do not meet with client will, for all intents and purposes, be subject to different and harsher standards.

My view is that the time has come to insist that a client must be physically met in every case.

That was the law in relation to Conditional Fee Agreements, and may now be again following the decision in

Vilvarajah v West London Law Limited [2017] EWHC B23 (Costs)

which I deal with in my blog NO SEE NO FEE? IS CFA VOIDABLE IF CLIENT NOT SEEN.

This would wipe out fraud overnight, largely wipe out illegal referrals, significantly cut cold calling and help re-establish the role of lawyers as professionals, and not just profit centres.

Secondly the case gives valuable guidance on the scope of a solicitor’s retainer.

Thirdly it is a kick in the teeth for those solicitors, and there are a few of them out there, whose sole contribution to the life of this country consists of stirring up largely unjustified claims against decent solicitors, either in negligence, or in trying to recover costs so that clients, being adults with full capacity, had agreed with those solicitors.

The conduct of those solicitors is often little short of blackmail.

Of course everyone has a right to bring a claim, but if it is a solicitor fuelled unmeritorious claim, then that solicitor should be hit hard with a Section 51 Wasted Costs Order.

So good news all round 🙂 .

Well done Lord Justice Jackson, whose judgment this is.

THE NEW INTERMEDIATE TRACK: SCOPE AND PROCEDURE

This blog first appeared in Practical Law on 21 September.

I deal with this matter in detail in my Fixed Costs Autumn Tour starting on Monday 25 September– you can book here.

All of these matters are dealt with in my new book – Personal Injury Small Claims, Portals and Fixed Costs, running to three volumes and 1,300 pages and costing £80.00 and available from me here or Amazon here.

This piece does not deal with the costs figures; that is for another piece.

As part of his Supplemental Report on Fixed Recoverable Costs, which will be considered by the Lord Chief Justice, Master of the Rolls and the government, Jackson LJ has proposed a new intermediate track.

This new track is a streamlined system for cases of no more than “modest complexity” valued at between £25,000 and £100,000, and lasting no more than three days at trial.

It will apply to claims that are principally for monetary relief – that is damages or debt – and will include cases where declarations are sought mainly to support the financial claim. It will not be possible to evade the scheme by including incidental claims for declarations. In exceptional circumstances a claim for non-monetary relief may be included in the track if that is necessary to provide access to justice.

Examples given in Jackson LJ’s report include individuals of modest means bringing defamation claims because of material on the internet and households seeking an injunction to restrain a private nuisance by a nearby industrial enterprise. “Modest means” is not defined and this may go no further, as means testing by the court and the need of the parties to obtain evidence is itself time consuming and expensive. It was never brought in for qualified one-way costs shifting, even though recommended by LJ Jackson.

The proposed criteria for allocating a case to the intermediate track are:

 

• The case is not suitable for the small claims track or the fast track.

 

• The claim is for debt, damages or other monetary relief, no higher than £100,000.

 

• If the case is managed proportionately, the trial will not exceed three days.

 

• No more than two expert witnesses per side giving oral evidence.

 

• The case can be justly and proportionately managed under the new expedited procedure (see below).

 

• There are no wider factors, such as reputation or public importance, which make the case inappropriate for this track.

 

• Mesothelioma and other asbestos-related lung diseases are excluded.

 

• There are particular reasons to assign a case to the track, even though it does not meet the above criteria.

 

Clinical negligence

Clinical negligence claims above £25,000 are, in principle, covered, but the report says that such claims:

“… will seldom be suitable for the Intermediate Track, unless both breach of duty and causation have been admitted at an early stage. The Multi-Track will be the normal track for clinical negligence claims above £25,000.00.” (Paragraph 3.5, page 102 of the report).

Other cases that will generally be unsuitable for the track include:

 

• Some multi-party cases.

 

• Actions against the police.

 

• Child sexual abuse claims.

 

• Intellectual property cases.

 

The complexity bands

Band 1 is likely to include quantum only personal injury claims, debt matters and simple claims where there is only one issue and the trial will take a day or less.

Bands 2 and 3 will be the normal bands “with the more straightforward cases going to into Band 2 and the more complex cases going in to Band 3.”

Band 4 will be for the most complex cases, for example a business dispute or an employers’ liability claim where there are serious issues of fact/law and the trial is likely to last three days.

A new Practice Direction will deal in detail with these matters.

Allocation to track and band

Claimants must state in the letter of claim what track and band the case should be in and the defendant must do so in the letter of response.

If the case settles before issue or allocation without agreement as to the appropriate track and band, then the judge assessing costs will decide the point.

Note that pre-action costs in an unissued case, as well as issued cases, will be subject to fixed recoverable costs.

On allocation the judge will allocate to both track and band. Either party may challenge the band, but not the track, at the subsequent case management conference. If the only reason for the case management conference is the dispute over band assignment, then the losing party on that issue pays £300 to the winner. There will be strictly limited exceptional circumstances in which a case can be removed from the intermediate track after the first case management conference, as otherwise the certainty as to costs will be lost.

It is not clear whether there will be power to move bands. It would seem sensible to be able to move down, but not up, bands, so that costs exposure could be reduced, but not increased. Thus a three day case becomes a one day case because of an admission of liability. It would make sense to move it from Band 4 to Band 1.

However one side’s costs exposure is another side’s costs recovery and so the certainty issue cuts both ways.

Procedure

Statements of case

Statements of case are to be ten pages maximum, with the court being able to order the claimant to redraft to bring it within this limit. Core documents are to be served at the same time.

Case management conference

The court will:

 

• Review and approve a list of issues.

 

• Resolve disputed document requests.

 

• Consider alternative dispute resolution (ADR).

 

• Give directions and fix a date for trial and a date for any pre-trial review.

 

• Identify matters on which oral evidence is to be given.

 

• Limit the number of factual witnesses using the powers contained in CPR 32.2(3).

 

• Seek to design case management directions so as to have the trial completed in one day.

 

Disclosure 

Non-personal injury cases

CPR 31.5(3) to (8) shall not apply. Each party shall disclose:

• The documents upon which it relies.

 

• Any other documents or classes of documents ordered by the court at the case management conference.

The parties shall exchange document requests at least seven days before the case management conference.

Personal injury cases

There is no change in personal injury cases. Standard disclosure remains as now.

Factual evidence

Written witness statements are to stand as evidence-in-chief, with the witness statements for all witnesses of a party limited to 30 pages, so a maximum of 60 pages for both parties.

Expert evidence

Oral expert evidence is limited to two witnesses per party, but the court should aim to have only one per party. Each expert’s report is limited to 20 pages plus photographs, plans, and academic and technical articles.

Trial

The court will set time limits for oral evidence and submissions.

Applications

In so far as possible, all applications should be made at the case management conference and after that:

• All applications and documents filed in support must be concise.

 

• The respondent must answer in writing within seven days of service of the application notice. The response must be concise.

 

• Any reply from the applicant must be provided within two business days of service of the response and be concise.

 

• The court will deal with an application without a hearing unless it considers it necessary to hold them. The hearing may be by telephone.

 

• The court will decide who shall pay the costs of any interim application and summarily assess them and such costs orders will be in addition to fixed recoverable costs.

 

Hand down of judgment

If judgment is reserved then there needs to be a separate hand down hearing, but the parties or advocates will not need to attend if all consequential matters have been agreed.

AFTER THE EVENT INSURANCE, THIRD PARTY FUNDING AND NEW FIXED COSTS REGIME: POST 7

 

All of these matters are dealt with in my new book – Personal Injury Small Claims, Portals and Fixed Costs, running to three volumes and 1,300 pages and costing £50.00 and available from me here or Amazon here.

The issues of After the Event Insurance and Third Party Funding are not dealt with in Lord Justice Jackson’s report and there is no proposal there, or indeed amongst the torrent of Civil Litigation Reforms, to change the law or procedure in relation to either After the Event Insurance or Third Party Funding.

However, spreading Fixed Recoverable Costs to virtually all types of civil litigation where the claim is valued at £100,000 or less should make both After the Event Insurance and Third Party Funding easier to obtain.

This is because insurers love certainty and generally both ATE insurers and Third Party Funders are acting as insurers in relation to adverse costs, as well as the client’s own disbursements.

Costs, both those recoverable and those potentially payable to the other side, rise with each stage of the litigation and therefore are perfectly suited to staged premiums, with the premium rising as each stage is passed.

As part of the fee is calculated as a percentage of damages, the amount of damages directly affects costs recoverability and costs exposure, something which is not true in the open costs regime.

There is nothing to stop the ATE premium being calculated in the same way, that is a fixed core premium depending upon the stage of litigation reached, with an additional premium based on the amount of damages awarded, or the agreed settlement figure.

This introduces certainty for the parties as to costs if they have After the Event Insurance.

Thus a winning Claimant would know exactly what costs it would recover, and what ATE Insurance premium it would have to pay to its own insurers, if say the case settled for £73,000.00 after the Case Management Conference and during the process of Disclosure and Inspection.

The only element of uncertainty there is the fee due to the Claimant’s own solicitor and the Claimant and her or his own solicitor are free to agree whatever they want, but the market is likely to determine that the solicitor will charge Fixed Recoverable Costs plus a fixed percentage of damages, as now happens in virtually all work currently subject to the Fixed Costs Regime.

A losing Claimant with After the Event Insurance will pay nothing as far as adverse costs are concerned, as they will be picked up by the ATE Insurance and generally the ATE Insurance insures its own premium,  as well as other own disbursements, that is the so called Silver Bullet Scheme whereby a losing party does not have to pay its own premium.

In those circumstances the only sum payable by the Claimant would be the fees to its own solicitors, and that is a matter of agreement between them.

I suspect that the market will settle down to a system of No Win Lower Fee Agreements in most types of business litigation, with No Win No Fee Agreements in most private client litigations.

A losing Defendant with ATE Insurance is in the same position, that is that the only payments due will be to the Defendant’s own solicitors and they are free to form any type of agreement.

A winning Defendant will recover fixed costs but will also have to pay its own ATE premium, and, unlike a success Claimant, will have no recovered damages out of which to pay the premium.

Of course the Defendant will have avoided paying any damages and thus will have achieved a saving, but will not necessarily have the cash to pay the premium.

The combination of certainty of costs recovery and exposure, and ATE Insurance, enables solicitors to budget a case for a client with considerable certainty and this should lead to a very significant increase in business, especially from business clients.

I deal with this elsewhere in Marketing and Business Opportunities but a detailed knowledge of how After the Event Insurance works is essential.

There is a fly in this ointment.

I have referred throughout to certainty.

However the existence of four Complexity Bands, with markedly differently costs recovery, and therefore costs exposure, cuts across that certainty.

The problem is that neither the Track nor the Complexity Band will be determined until the judge allocates the matter post-issue, that is obviously well after the date when ATE should be taken out.

It may be that ATE insurers will deal with that by having a core fee that varies depending upon which Complexity Band the case is allocated to.

As we have seen elsewhere the Claimant’s solicitor, in the Letter of Claim, and the Defendant’s solicitor, in the Letter of Response, must state which Track and Band the matter should go into.

In the absence of agreement the matter will be decided by a judge, and if the case is settled pre-issue, and so no allocation has taken place, the judge dealing with costs will determine that matter.

This reinforces the great importance of solicitors addressing at the outset, which Complexity Band the matter should go into.

There are various tensions at play here.

A Claimant who expects to win may want to be in a higher Complexity Band so as to recover more costs, but will then pay a higher ATE premium.

A client who is less confident of winning may want, or rather the ATE insurers may want, a lower Complexity Band so as to minimise the adverse costs risks.

The After the Event Insurance premium remains recoverable in mesothelioma cases, but they will not be subject to Fixed Recovered Costs in any event – See Part 19.

In clinical negligence cases that element of the ATE premium relating to the cost of a liability and causation report remains recoverable but the costs of that report and the costs risk should not change, as it is a disbursement rather than legal costs and thus is not affected by the introduction of Fixed Recoverable Costs in clinical negligence claims.

Thus the only area where recoverability of the ATE premium remains, and which will now be subject to Fixed Recoverable Costs, is defamation and privacy.

Third Party Funding

In so far as Third Party Funders acting as After the Event insurers, all of the above points are relevant.

Third Party Funding generally also covers one’s own client disbursements, as do most After the Event Insurance premiums.

What Third Party Funding does in addition, generally, is to pay the party’s own lawyers a fee if a case is lost, and therefore effectively allows a client to have a no win no fee arrangement in circumstances where the solicitors may be unwilling to enter into such an arrangement, generally due to cash flow, rather than case-risk issues.

The value of Third Party Funding increases with the value of the claim and with the extension of fixed costs to claims up to £100,000.00, and with the £250,000.00 pilot running in the Commercial Court, Third Party Funding should become more readily available.

Some Third Party Funders are now looking at funding the firm across a basket of cases, rather than simply offering a bespoke arrangement in an individual case.

 

Also see:

FIXED COSTS REPORT OVERVIEW: POST 1

FIXED COSTS AND PART 36: POST 3

FIXED COSTS: THE FAST TRACK FIGURES: POST 4

JUDICIAL REVIEW AND FIXED COSTS: POST 5

CLINICAL NEGLIGENCE AND FIXED COSTS: POST 6

FIXED COSTS COURSE: CONTENT

FIXED COSTS COURSE

THE BAR AND FIXED COSTS

HOUSING CLAIMS AND THE NEW FIXED COSTS REGIME

You can now book onto my Fixed Costs Autumn Tour – here

All of these matters are dealt with in my new book – Personal Injury Small Claims, Portals and Fixed Costs, running to three volumes and 1,300 pages and costing £80.00 and available from me here or Amazon here.

Summary

All housing claims up to £100,000.00, therefore effectively all claims, are to be covered by Fixed Recoverable Costs.

Recommendations

There is no specific recommendation in relation to housing claims.

Commentary in report

At paragraph 5.18, page 88, of the report Lord Justice Jackson states:

 

“5.18 Housing claims.  The principle categories of housing claims are:

1. Defending claims for possession, including mortgage repossession.

 

2. Claims for unlawful eviction.

 

3. Homelessness applications, including County Court appeals.

 

4. Claims for breach of repairing obligations.

 

5. Judicial review in respect of housing law issues.

The HLPA say that they are particularly concerned about housing disrepair claims because these seldom qualify for legal aid. I understand from one of my assessors, who has experience of managing disrepair cases in the fast track, that the FRC regime proposed above would be satisfactory for most disrepair claims. Most such claims would fit into either Band 3 or Band 4. Nevertheless, in certain of the cases cited by the HLPA, the recovered costs are higher than the proposed FRC (even allowing for the fact that the HLPA figures include VAT and disbursements). Possibly these are cases which ought not to have been in the fast track at all or possibly they are exceptional cases where the escape clause might be invoked (as to which see below). It is difficult to say without having the details of individual cases.”

Appendix 5 to Lord Justice Jackson’s report is:

Detailed Information on 83 Housing Disrepair Cases, collected from Solicitor members by the Housing Law Practitioners Association.

 

Fast Track

In the Fast Track, which for housing disrepair claims, but not other housing claims, is £1,000.01 to £25,000.00, claims will generally go into Complexity Band 3 or 4.

The starting point is Complexity Band 3 but with “particularly complex” cases going into Complexity Band 4.

Complexity

Few housing claims are above the general Fast Track financial limit of £25,000.00.

Any particularly complex claims I likely to be unsuitable for the Intermediate Track, which is for claims of no more than “modest complexity” and is primarily for claims suitable for the Fast Track, but for the value of the claim.

Any housing claim allocated to the Multi-Track will not be subject to Fixed Recoverable Costs.

Lord Justice Jackson states that some such claims may remain in the Fast Track, but be subject to the CPR 45.29J escape clause.

This allows parties to escape the Fast Track FRC scheme in “exceptional circumstances.”

LJ Jackson states:

“That provision will continue to apply, but its reach will be extended following the extension of FRC across the whole of the fast track. Use of this provision will continue to be rare, because any case of exceptional complexity is unlikely to be in the fast track.” (Paragraph 5.20, Page 89)

CPR 26.8 deals with the matters to be considered when allocating to the Fast Track and CPR 26.10 allows the court to reallocate a case which should not be in the Fast Track.

This is a double-edged sword as there is no system of Qualified One-Way Costs Shifting in housing claims, and so a Claimant seeking allocation to a non-Fixed Costs Track, or seeking to avoid FRC, exposes itself to a greater costs risk.

One of the unanswered questions concerns the interplay with the after the event (ATE) insurance.

Insurers love certainty, and so FRC, and therefore fixed maximum exposure to adverse costs, should make ATE insurance cheaper and easier to get.

However ATE insurers are almost certain to insist on a much higher premium if the matter is allocated to the Multi-Track, or any non-FRC scheme.

At present effectively, but not technically, only a Claimant can seek to invoke CPR 45.29J as it only applies to personal injury claims and Qualified One-Way Costs Shifting applies to all such claims.

As FRC spread to all types of civil work, any successful party, Claimant or Defendant, will be able to apply under CPR 45.29J.

Legal aid is generally not available for housing claims.

There is a powerful argument for spreading Qualified One-Way Costs Shifting regime to all housing claims.

The relevant part of the Civil Procedure Rules is CPR 45.29J to 45.29L which reads:

“Claims for an amount of costs exceeding fixed recoverable costs

45.29J

(1) If it considers that there are exceptional circumstances making it appropriate to do so, the court will consider a claim for an amount of costs (excluding disbursements) which is greater than the fixed recoverable costs referred to in rules 45.29B to 45.29H.

(2) If the court considers such a claim to be appropriate, it may—

(a) summarily assess the costs; or

(b) make an order for the costs to be subject to detailed assessment.

(3) If the court does not consider the claim to be appropriate, it will make an order—

(a) if the claim is made by the claimant, for the fixed recoverable costs; or

(b) if the claim is made by the defendant, for a sum which has regard to, but which does not exceed the fixed recoverable costs,

and any permitted disbursements only.

Failure to achieve costs greater than fixed recoverable costs

45.29K

(1) This rule applies where—

(a) costs are assessed in accordance with rule 45.29J(2); and

(b) the court assesses the costs (excluding any VAT) as being an amount which is in a sum less than 20% greater than the amount of the fixed recoverable costs.

 

(2) The court will make an order for the party who made the claim to be paid the lesser of—

(a) the fixed recoverable costs; and

(b) the assessed costs.

Costs of the costs-only proceedings or the detailed assessment

45.29L

(1) Where—

(a) the court makes an order for costs in accordance with rule 45.29J(3); or

(b) rule 45.29K applies,

the court may—

(i) decide not to award the party making the claim the costs of the costs only proceedings or detailed assessment; and

(ii) make orders in relation to costs that may include an order that the party making the claim pay the costs of the party defending those proceedings or that assessment.

HIGH COURT MAKES NON-PARTY COSTS ORDER AGAINST COMPANY IN SAME GROUP AS CLAIMANT

In Montpelier Business Reorganisation Ltd v Jones and others [2017] EWHC 2273 (QB) (12 September 2017)

the Queen’s Bench Division of the High Court made a Non-Party Costs Order against the 7^th Defendant, NPL, a major shareholder in the insolvent Claimant company which largely lost its breach of contract claim against the first to fifth Defendants.

The court declined to make an order against another company, MPL Leeds, a subsidiary of MPL as there was no evidence that MP Leeds had funded the litigation, or controlled it, to the extent that would justify making a Non-Party Costs Order.

The order against MPL was made under Section 51 of the Senior Courts Act 1981.

The court was satisfied that MPL was the real party to the litigation and thus that it was just to make the order.

It was the vehicle through which the litigation had been funded, by an interest free unsecured loan, and was the party that would benefit directly from the claim succeeding.

The absence of impropriety in MPL’s conduct did not prevent the order from being made.

MPL’s status as a major shareholder did not bring into play the special considerations that applied to directors who funded litigation, which require an applicant for a Wasted Costs Order to show that the funder is something more than a director of the Claimant, for example that there had been improper conduct on their part in conducting the litigation.

The court held that, although the interests of directors and shareholders may often be the same, their status is completely different, as directors are officers of a company and have statutory obligations to act in its best interest.

As to the fact that the allegation that MPL also controlled the litigation was only raised for the first time in the applicant’s skeleton argument, the court held that given the evidence at trial, it should have been clear to MPL that it was being alleged that MPL was controlling the litigation.

In any event, although here there was clear evidence of such control, the absence of control did not prevent an order being made where it was just to do so.

This is a somewhat unusual set of facts in that the Non-Party Costs Order was made against a funder in the same group of companies as the Claimant, in circumstances where the funder was the real party to the litigation and would benefit if it succeeded.

That fact alone, would not of itself justify a Non-Party Costs Order being made.

The 7^th Defendant, along with the 6th Defendants, was only joined into the proceedings in order for the court to consider a Section 51 Order and were not original parties to the proceedings.

CLINICAL NEGLIGENCE AND FIXED COSTS: POST 6

You can now book onto my Fixed Costs Autumn Tour – here

All of these matters are dealt with in my new book – Personal Injury Small Claims, Portals and Fixed Costs, running to three volumes and 1,300 pages and costing £80.00 and available from me here or Amazon here.

Clinical Negligence

Clinical negligence is dealt with in chapter 8 of the report here, at pages 113 to 118.

Summary

It is recommended that there be a Fixed Recoverable Costs grid for all claims up to £25,000.00, the details to be determined by a joint Civil Justice Council/Department of Health working party and such grid to cover claims up to £25,000.00 in all tracks.

“Conclusion and recommendation

6. Conclusion

6.1          Recommendation. I recommend that the Civil Justice Council should in conjunction with the Department of Health set up a working party, including both claimant and defendant representatives, to develop a bespoke process for clinical negligence claims initially up to £25,000 together with a grid of FRC for such cases.”

 

Thus no specific proposal is made as to the level of FRC in clinical negligence claims.

The aim of the proposed working party will be to develop a bespoke process for clinical negligence claims initially up to £25,000.00 with a grid of Fixed Recoverable Costs for such cases. (My italics).

That grid would cover 63.15% of successful claims.

Taking into account unsuccessful claims, where obviously no costs are awarded to the claimant, such a scheme would result in open costs, as compared with fixed costs, in 19.81% of cases, with just over 80% of cases resulting in no award or an award of £25,000.00 or less.

If, in due course, all claims up to £100,000.00 were included in line with other litigation, then that would leave 6.62% of cases subject to open costs recovery.

2.93% of cases result in awards or settlements of over £250,000.00.

These statistics are on pages 113 and 114 of the report.

It should be noted that LJ Jackson proposes an FRC grid for all clinical negligence claims up to £25,000.00 “regardless of whether they are suitable for the Fast Track, the Intermediate Track or the Multi-Track.”

This is significant. Few clinical negligence claims are allocated to the Fast Track, and the Intermediate Track is as yet an unknown quantity, so a FRC scheme limited to the Fast Track would leave nearly all cases subject to open costs. That is not going to happen. Value, not track, will determine whether or not the matter is subject to FRC.

Thus clinical negligence cases may be the first multi-track claims to be subject to FRC and may pave the way for other types of multi-track cases to be brought within FRC.

“Once delivered and implemented, in time it might be possible to extend the success of such an initiative to claims of somewhat higher value.” (Paragraph 5.4).

The report also says that a minority of clinical negligence claims valued at between £25,000.00 and £100,000.00 might be suitable for the new Intermediate Track.

An example given is of a case where the defendant admits breach and causation in the protocol period with only relatively straightforward quantum issues to be resolved.

Given the National Audit Office’s report in September 2017, and given that most defence costs in clinical negligence are paid by the state, I suspect that this will be the first type of work to be subject to FRC for all cases, whatever their value.

Timescale

Unlikely to be before April 2019.

 

Also see:

FIXED COSTS REPORT OVERVIEW : POST 1

FIXED COSTS AND THE BAR: POST 2

FIXED COSTS AND PART 36: POST 3

FIXED COSTS: THE FAST TRACK FIGURES: POST 4

JUDICIAL REVIEW AND FIXED COSTS: POST 5

CLIENT CARE SILVER SERVICE

This piece first appeared in the Law Society: Managing for Success newsletter.

Solicitors’ client care levels are far better than they were when I started work 43 years ago.

Speed of service, clarity of communication and transparency concerning costs and the attitude towards complaints are now all taken seriously by most firms. That was not always the case.

All the evidence is that in any field consumers or customers look for value for money rather than just price and are prepared to pay more for higher quality. Clients with a one off purchase in a “high ticket” matter of great importance to them will be guided by matters other than price.

Clearly there are different models appropriate for different firms. If you just want to make as much profit as possible out of referred conveyancing or personal injury work where you never see the client then you are probably not reading this anyway. However if you wish to build up a firm with a good reputation which other lawyers wish to join, and in due course take over, read on.

None of the ideas here is expensive or difficult to implement but they do require a culture that every member of the firm buys into, especially the decision makers and senior lawyers.

Lead by Example

Do not expect junior staff to have service levels which the decision makers are not prepared to observe. For example I never managed to time record centrally and properly so we have scrapped it.

Clarity of Objectives

Have clear, objectively measurable standards which mean something to clients and which they, as well as all staff, understand. Concepts such as whether a matter has been progressed satisfactorily have their place, but are open to subjective interpretation.

Core Promises

We have four core promises which appear in a single page opening letter as well as in the much longer client care letter:-

“1. We will see you within 5 minutes of your appointment time or your arrival in the office, whichever is later.

 

2. We will contact you each calendar month to tell you how your case is progressing.

 

3. If you telephone us before 3.00pm we will return your call within 3 hours.

 

4. Any email received from you by 3.00pm will be answered the same day.”

 

These are easily measurable by clients and by the firm through its audit process.

We pay £100.00 each and every time any of these four core promises are not met.

Mean It

Many firms have “SLAs” – meaningless jargons to most non-business clients (Service Level Agreements) but pay little attention to them unless there is a complaint.

Do the senior people in your organisation spend as much time and energy on core quality standards as they do on billing targets? If not why not? They are far more important. Give a consistently high quality service at an affordable price and the work will follow.

Do you pay bonuses on client service levels rather than on, or as well as, billing?

Transparency

Consider publishing the audit results on your website. We audit 10 files a month per lawyer on specific measureable items. If you get 100% you get a bottle of champagne or equivalent. This has become a matter of pride, not policing, for our lawyers and again it is important that all senior people are included in the audit and are performing.

Little Things Matter

All of us are capable of finding excuses not to do things we are worried about. Recognise that many clients would rather go to the dentist than see a lawyer. Here are some ideas as to make the process less painful:-

• inform new clients about parking arrangements;

 

• send clients an AA or Google directions from their home to your office;

 

• give details of public transport from their home to your office;

 

• offer to pay for a taxi from the railway station to the office;

 

• offer to pick them up

 

I prefer to see clients at our office rather than at their home with their dog peeing over me and the TV on etc. so I am surprised at how many firms offer home visits but will not spend far less effort in enabling clients to come to the office, for example by offering to pick them up from the station.

Reception

Visit any doctor’s surgery and then do exactly the opposite.

The receptionist is a key person and should be warm, smiling, welcoming and reassuring. Have the best coffee in town and have the coffee maker in reception. Have nice clean cups, pastries, biscuits, paper napkins, fruit juice, water etc.

No out of date newspapers, magazines etc.

Think very carefully about how the reception is decorated. Nothing is less welcoming than a gloomy poorly lit untidy reception area with hard chairs. Light colours, plenty of light, comfortable sofas and the smell of coffee creates a very different impression. We have framed Buddhist posters, one of which has the message “Quiet in the land”. The reception should be a warm and welcoming haven of peace for people likely to be nervous and dealing with a matter of utmost importance to them.

The Meeting

Ensure that the meeting room is warm – literally – and welcoming. If you have space then have two types of meeting room – an across the table type one and a sofas and no table one.

Take as long as it takes! Time recording bean counters will tell you that this is inefficient. Rubbish. There is nothing efficient about having to pay or advertise for work because you cannot get it in on reputation.

Those two or three hours with a new client building their loyalty and that of their family and friends is the most valuable time you have ever spent.

Ensure that each 45 minutes or so someone pops in to see if any more tea or coffee is needed. If the meeting takes places around lunchtime offer to buy sandwiches.

Toilets

Clean, with soap and clean towels please! The only rooms your clients will normally see are reception, the toilet and the meeting room, often in that order. Make an effort with each of them.

Play area

If possible have a play area for children and someone who can supervise children while the parent is in a meeting.

Attire

Smart and professional.  Many lawyers complain about lack of respect from clients yet dress sloppily and have untidy and unwelcoming offices where the client seem to be an unnecessary distraction and intrusion, rather than the lifeblood of the business. I once threw our (former) accountant out for coming in to my office looking like a tramp. For him it was dress down Friday – for me it was an embarrassment if any of my clients or staff saw him. He lost our business as a result.

Difficult clients

Difficult cases I love; difficult clients I do not. They are never worth it. Each client is spoken to first by a solicitor on the phone to try and judge what the client will be like.

Red Alerts

• Getting our name from an internet search without looking at our website

 

• Asking for a free first interview

 

• Querying price

 

• Already got solicitors

 

• Close to limitation period

 

• Suggesting that the case will raise our profile

 

• “Do this one well and we will have other work for you.”

 

Accessibility and Availability

• 24/7 phone line

 

• Evening opening

 

• Saturday morning opening

 

Easy, cheap and productive, but few firms have these facilities.

Newsletters

No one, but no one, is interested in your ground-breaking case on the White Fish and Ancillary Matters Regulations, not even the client you are acting for.

Prize draws, social events, auctions etc. catch clients’ imaginations. Consider having a prize draw in every newsletter, for example, press the reply button and automatically get entered into a draw for dinner for two at a local restaurant or whatever.

That gets the newsletter read and you can get across something about the firm, for example evening and Saturday opening.

Costs

Lawyers are expensive and should be. Do not apologise and do not go down market – leave that to the failing ABSs. Explain to the client the fully comprehensive insurance that they are getting –that is why unbundling is mad.

Reassurance and certainty about costs are important.  For example in litigation everything is moving towards fixed costs and contingency fees. That introduces certainty, which clients like, and should mean that firms compete on quality rather than price.

The ethical danger is the temptation to under-settle and thus get out early for a quick fee for little work.

Thus a claim of £5,000.00 is being done on a 25% contingency fee and if it goes the distance will take 30 hours. Settling for £4,000.00 after 10 hours’ work is far better for the solicitor than earning another £250.00 – 25% of £1,000.00 – for another 20 hours’ work.

In fact most clients prefer to settle early for less but reassurance is critical.

At Underwoods Solicitors we have had for 18 years an appeal process for clients in any contingency or fixed fee case whereby they can appeal, at our expense, to a named QC and we will abide by his or her decision. Thus if we have settled for £4,000.00 and the QC thinks that the case is worth £5,000.00 we pay the extra £1,000.00 plus the QC’s costs.

Communication

The telephone is the best tool in the office. More can be got out of one phone call than an exchange of 20 emails. When you do write make sure that it is in language that is easy for any client to understand. Few lawyers now deliberately use jargon to show how clever they are; happily that is a thing of the past. Nevertheless an email that a client has trouble understanding is upsetting and demoralising for that client.

It is very easy to see how clear a written communication is. Just copy and pastethe whole piece into the Flesch-Kincaid Test accessible at https://readability-score.com/ and it will give you a score. We aim always to have a score of 60 or over which means that it can be understood by a normal 13 to 15 year old.

The key things to avoid are long sentences and paragraphs with semi-colons and brackets in sections and sub-clauses etc.

Short punchy paragraphs with no jargon always score well.

Cost

All of the ideas here we have implemented successfully and the common factor is that they do not involve spending tens of thousands of pounds on software systems etc.

Tea, coffee and taxis are worth far more.

Knowing a bit about the law also helps, but clients are rarely able to judge you on that. They can judge you on all of these other things.

This piece scored 68.4 on the Flesch-Kincaid Test.

“Sometimes things become possible if we want them bad enough.”

T.S Eliot

RELIEF GRANTED AFTER FAILURE TO PAY COSTS

In Singh and others v Charity Commission and others [2017] EWHC 2183 (Ch)

the Chancery Division of the High Court granted relief from sanctions in respect of a Claimant who had failed to comply with an order for payment on account of costs of £75,000.00, even though the Claimant was in breach of an Unless Order.

It was common ground that the default was serious and the judge was satisfied that there was no good reason for it.

As well as applying the test set out in Denton v TH White Ltd and others [2014] EWCA Civ 906, the court noted the further guidance in Oak Cash and Carry Ltd v British Gas Trading [2016] EWCA Civ 153 which required him to consider the delay under the original order and not simply the delay following on from the breach of the Unless Order.

Payment was made relatively soon after the Claimants lost their application to vary the Unless Order and the disruption to the court timetable was minimal.

The dates for the pre-trial review and trial was still available and the dates given in the directions would only need minor adjustment.

There would have to be a further Costs and Case Management Hearing, but that disruption was not sufficient so as to justify the continued debarring of a potentially good claim.

The judge also took into account the fact that the claim affected others beside the actual parties to the case.

The judge ordered the Claimants to pay the costs thrown away by the additional Costs and Management Conference, but allowed relief from sanction and allowed the claim to continue.