Kerry Underwood

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

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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.

  1. 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.

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Written by kerryunderwood

September 26, 2017 at 8:56 am

Posted in Uncategorized

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