Kerry Underwood

Archive for October 2018


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In October I am delivering my new course – Getting the Retainer Right – in 7 cities – details and booking form here.

In Palmer Birch (A Partnership) v Lloyd [2018] EWHC 2316 (TCC)

the Technology and Construction Court  upheld economic tort  claims by a building contractor against two individuals who directed the affairs of the limited company with which the building contractor had contracted under a JCT contract.

The judge found that:

  • The first defendant and the second defendant had committed unlawful means conspiracy by colluding to bring about the limited company’s liquidation so that it could escape the contract and avoid having to pay the building contractor for the work done.
  • The first defendant, who was the limited company’s sole funder, though not a director, had induced the limited company’s breach of contract.

The contract concerned the renovation of a house in which the limited company had a leasehold interest and where the freehold was held by a company beneficially owned by the first defendant, whose English residence it was.

The first defendant was non-UK domiciled and had deliberately not become a director of the limited company so as to distance himself from the limited company’s affairs and by interposing the limited company between himself and the property, he benefitted financially.

However, he behaved throughout as the effective client under the contract, and the key decision-maker.

The first defendant’s decision to divert his funding away from the limited company persuaded the judge that he had crossed the line from “merely preventing” the contract to inducing its breach.

The first defendant had treated the works as a “pay as you go” arrangement, not a contractual commitment and the second defendant was denied the protection of the corporate veil regarding the conspiracy element.

He had acted neither constitutionally nor in good faith.

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October 15, 2018 at 7:24 am

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In October I am delivering my new course – Getting the Retainer Right – in 7 cities – details and booking form here.

In Welsh v Walsall Healthcare NHS Trust (Costs) [2018] EWHC 2491 (QB)

the Queen’s Bench Division of the High Court, in making a costs order in a clinical negligence claim departing from the general rule that the “loser pays”, has provided useful guidance on issue-based costs orders, reviewing the authorities and rules in detail.

The High Court endorsed the approach set out in the notes of the White Book at paragraph 44.2.10 summarised below.

The rules do not require that an issue-based costs order only be made “in a suitably exceptional case”, and nor was this to be implied, although there needs to be a reason based on justice for departing from the general rule:

“… the extent to which costs of a particular issue are to be disallowed should be left to the evaluation and discretion of the judge by reference to the justice and circumstances of the particular case.”

The reasonableness of taking failed points, and the extra associated costs, should be considered.

The judge should express an issue-based order by reference to the costs of an issue when appropriate.

However, generally, because of practical difficulties, they should hesitate in doing this, and, where practicable, express the order as a percentage of total costs or with reference to a distinct period of time.

There is no automatic rule requiring an issue-based costs order in the form of a reduction of a successful party’s costs if he loses on one or more issues.

The mere fact that a successful party was not successful on every last issue cannot, of itself, justify an issue-based costs order.

The courts recognise that, in any litigation, any winning party is likely to fail on one or more issue and possibly issues on which the losing party could have taken steps to protect himself, at least to an extent, as to a costs liability.

The court then cited with approval the second principle set out in

Factortame v Secretary of State [2002] EWCA Civ 22:

Each case will turn on its own circumstances, but the court should be trying to assess” who in reality is the unsuccessful party and who has been responsible for the fact that costs have been incurred which should not have been””.

This was a clinical negligence case which the claimant won, but the claimant had made allegations of lack of informed consent to the operation, but dropped that allegation part way through the trial.

The defendant paying party argued that that issue had caused unnecessary costs and that the claimant should only recover part of its costs, and also be responsible for 30% of the defendant’s costs.

The court held that a claimant’s offer was not a valid Part 36 offer as it was made less than 21 days before trial.

Here, the court’s order reflected the fact that the claimant did not succeed on a discrete part of her case, which had taken up a substantial amount of time at trial and was ultimately withdrawn.

The court ordered the defendant to pay 85% of the claimant’s costs of the proceedings.

This was not based on any precise mathematical analysis, but rather the court’s judgment on doing justice in all of the circumstances.

The failure by the defendant to make an offer of settlement, or accept an offer by the claimant which would have left it in a better position than following trial, were relevant factors in determining the percentage reduction in the claimant’s costs when the claimant had unreasonably pursued an issue to trial.

The court reminded litigants that the best way for a defendant to protect itself in relation to costs is by making a Part 36 offer.

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October 12, 2018 at 7:40 am

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In October I am delivering my new course – Getting the Retainer Right – in 7 cities – details and booking form here.

In Danilina v Chernukhin and others [2018] EWHC 2503 (Comm)

the Commercial Court ordered the claimant to pay further security to three defendants being 75% of incurred and expected costs, as there was a reasonable possibility of indemnity costs being ordered if the claimant lost, accepting the defendants’ argument that if the claimant lost at trial, it was highly likely that she would be ordered to pay indemnity costs, on the basis that she knowingly gave false evidence, as, on the facts, there was no room for mistaken recollection.

In the absence of a possible indemnity costs order, security was generally ordered by reference to 60 to 70% of incurred and expected costs.

This did not involve considering the merits of the claimant’s claims, it assumed she lost them.

The court held that if this happened, it was likely to be because the claimant was dishonest.

The first defendant was also involved in an arbitration with a third party which raised the same issue as one of the claimant’s claims.

The court held that the apportionment of the defendants’ future costs 65% to the claim and 35% to the arbitration was a reasonable possibility, so could be used for the purpose of the security order.

The claimant was unable to establish that her claim would be stifled if she was ordered to pay the level of security sought.

The third party had already provided funds to the claimant and made it clear that he wished her to pursue and win the proceedings.

The claimant’s statement that the third party had not agreed to provide further security was not “full, frank, clear and unequivocal evidence” that he was not willing or able to provide the security sought.

Although the claimant was being asked to provide security at a late stage, two months before trial, this did not justify not making the order, particularly as there was no evidence that providing the security would be burdensome to the third party.

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October 11, 2018 at 7:55 am

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In October I am delivering my new course – Getting the Retainer Right – in 7 cities – details and booking form here.

In Culliford & Anor v Thorpe [2018] EWHC 2532 (Ch) (02 October 2018)

the Chancery Division of the High Court held that a court could entertain an application for a payment on account of costs even after an order for costs has been made, drawn up and sealed.

“There is nothing in the rules that so requires, and there may be good reason why payment of the sum on account is not considered at the time the order was made.”

Indeed the starting point is that the court must, of its own volition, order a payment on account of costs, as CPR 44.2(8) states:

“Where the court orders a party to pay costs subject to detailed assessment, it will order that party to pay a reasonable sum on account of costs, unless there is good reason not to do so.”

That was not done in this case and the successful defendant subsequently applied for a payment on account and the losing claimant argued that the good reason not to do so was that the defendant had not requested such a payment when the order was made.

Even though the defendant had failed to apply for a payment on account of costs at the hearing, the court here ordered the claimant to pay the costs of the application in accordance with the usual “loser pays” rule.

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October 10, 2018 at 7:26 am

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In October I am delivering my new course – Getting the Retainer Right – in 7 cities – details and booking form here.

In Allen v Brethertons LLP [2018] EWHC B15 (Costs) (02 October 2018)

the Senior Courts Costs Office ordered the defendant solicitors to deliver a bill of costs, pursuant to its jurisdiction under 68 of the Solicitors Act 1974 and CPR 67.2.

The case has several points of interest.

It confirmed the requirement that a bill must be delivered to the client in relation to all costs received, including portal fixed costs paid by the other side.

Here the bills were addressed to the claimant at his home address and described as “Payable by Ageas Insurance Ltd” but not delivered to the claimant.

The court ordered delivery of bills, for that and for other reasons.

The case confirmed that a statement reading:

Therefore, if you obtain £10,000 compensation I would be able to deduct £2500 towards my success fee and you would receive £7500 …”

meant just that and so the solicitor could not deduct a further £150 in respect of the unrecovered element of a medical report fee.

There were also mathematical errors in the calculation of the extra sum claimed and the balance due to the client and none of the disbursements appeared in any bill, whether delivered to the claimant or not.

The reference throughout the “success fee” was wrong – much of it was unrecovered solicitor and own client costs.

Costs, even fixed costs, always belong to the client.

Where the amount of recoverable costs is prescribed by statute, those costs are not open to challenge by a paying party under the indemnity principle

– see Butt v Nizami [2006] EWHC 159 (QB) .

However, that does not mean that the costs become the costs of the solicitor rather than the client

– see Cobbett v Wood [1908] 2 KB 420.

Stage I and Stage II costs are described at CPR 45.18 as “the legal representative costs” only to distinguish them from an advocate’s costs. It does not create any exception to the principle referred to in Cobbett v Wood above.

A solicitor cannot on the one hand hold the claimant contractually responsible for all its costs and disbursements, even on a capped basis, and on the other hand assert that the client is not entitled to receive a bill for, or challenge, part of them because they are not his costs.

Here the claimant, that is the client/former client, was represented by and the court added this important footnote, which should be read and understood by all of those dealing with Solicitors Act challenges.


61. Ms Moore, the Claimant’s professional adviser, is a Costs Lawyer, that is to say a person regulated by the Costs Lawyer Standards Board and with the right, in cases such as this, to conduct litigation and to exercise a right of audience. In correspondence with the Defendant, she identified herself as such from an early stage and from the outset requested that the Defendant communicate with, rather than with the Claimant directly.

62. That seems to me to be consistent with the current provisions of the Solicitors’ Code of Conduct (at chapter 11), which indicate that a solicitor should not contact a party directly where that solicitor is aware that that party has instructed “a lawyer”, defined in the glossary to the Code of Conduct to include “a profession whose members are authorised to carry on legal activities by an approved regulator other than the SRA”.

63. If the Defendant had been any doubt about Ms Moore’s status, a quick check of the public register maintained by the CLSB, and freely available on the Internet, would have confirmed it.

64. The Defendant refused to comply with Ms Moore’s request not to contact the Claimant directly. Its response to Ms Moore’s initial communication was to write directly to the Claimant on the basis that is not a firm of solicitors. Even after its file had been released to and it had received notice that the Claimant’s application had been filed, the Defendant wrote its letter of 18 February 2018 directly to the Claimant, encouraging him to deal with the Defendant directly.

65. I appreciate that the Defendant may have had some initial concerns about its authority to release papers to, but by 18 February 2018 can have been no mistake about the Claimant’s wishes or Ms Moore’s professional status.

66. Whether the Defendant has complied with the Code of Conduct is not a matter for me, but I would offer the view that Ms Moore, when acting as a Costs Lawyer with a right to conduct litigation, is at the least entitled to expect from the Defendant the same professional courtesy as a solicitor would expect. It does not seem to me that she has received it.”

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October 9, 2018 at 8:48 am

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In October I am delivering my new course – Getting the Retainer Right – in 7 cities – details and booking form here.

In Independent Workers’ Union of Great Britain v Central Arbitration Committee (Defendant) and Roofoods Ltd (t/a Deliveroo) (interested party) [2018] EWHC 1939 (Admin) [2018] IRLR 911

the Administrative Division of the High Court refused to make a Costs Capping Order when allowing an application for judicial review to proceed.

The court has power under CPR 46.16 to limit or remove the liability a claimant may have on judicial review for the costs of the interested party.

Here the applicant union contended that the proceedings were in the public interest within the meaning of section 88(7) of the Criminal Justice and Courts Act 2015 because the employment status of delivery riders is of common interest to hundreds of thousands of individuals in Britain engaged in the gig economy, and the issue raises a matter of general public importance.

The claimant relied on the fact that it was a small independent trade union whose members are low paid workers and that it had limited financial means and negligible assets whereas Deliveroo has substantial resources.

Solicitors and counsel had both acted pro bono throughout.

The court refused the application holding that the proceedings were brought by the trade union to secure recognition for itself and on behalf of its members and for their benefit and those members paid subscriptions to the union for it to act as a union on their behalf in just of these circumstances.

The status of workers was highly fact sensitive to any given case and therefore a decision in one case did not affect the decision in another case.

Therefore the court’s decision was not of common interest to all workers in the gig economy.

The court took the view, surprisingly one might think, that the outcome of the case would not form any sort of precedent for other companies or industries in the gig economy.

Therefore the issues were not of general public importance nor of public interest.

The court also took into account the fact that the claimant had launched a crowdfunding appeal and had stated that it had raised around £23,000, and therefore the court did not accept that it had limited financial means.


It is hard to see that there will be many cases where the court will impose a Costs Capping Order if it sets the bar as high as will set in this case.

An unfortunate decision in relation to costs.

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October 8, 2018 at 7:36 am

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In October I am delivering my new course – Getting the Retainer Right – in 10 cities – details and booking form here.

The fee on a Part 8 application for infant approval is £308 and not the fee payable on the issue of a Part 7 claim, or a Stage 3 portal claim.

Ministry of Justice guidance saying that the full fee applies to all Part 8 claims is wrong; it only applies to Stage 3 claims.

The court has itself suggested that:

You may, in order to assist the court, specify that the Claim is for an infant settlement, in bold print.”

You may indeed.

I am grateful to Gordon Exall and his outstanding blog – Civil Litigation Brief – for the information in this piece. Here is the link to the longer post on this subject. The Correct Fee on a Part 8 Application: Don’t Let The Court Staff Make You Hand Over Money For Nothing

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October 5, 2018 at 11:21 am

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This blog first appeared on the Practical Law Dispute Resolution Blog on 27 September 2018.

In October I am delivering my new course – Getting the Retainer Right – in 10 cities – details and booking form here.

In an increasingly global world the issues of international and extra-territorial jurisdiction are becoming increasingly important, as a recent flurry of cases and developments shows.

The Netherlands Commercial Court has just circulated an update on the progress towards its creation, and this court, which will hear cases and publish judgments in English, is expected to launch in January 2019.

In a speech on 14 September 2018, Sir Geoffrey Vos, Chancellor of the High Court, said:

I believe the judges in our highest courts should consider carefully in every case how the common law is developing in different jurisdictions, with a view to seeing whether consistency can be achieved. There may even be case for more cross-jurisdictional debate between senior courts on a specific topic.”

It is not inconceivable that in the working lives of some of you reading this piece, we will have a World Commercial Court.

Judgment debtor can seek committal of party outside jurisdiction under CPR 81.4 for breach of order under CPR 71.2 

In Vik v Deutsche Bank AG [2018] EWCA Civ 2011

the Court of Appeal held that a party can make a committal application under CPR 81.4, in respect of a party outside the jurisdiction, to enforce an order to attend court made under CPR 71.2.

Deutsche Bank sought to enforce a judgment debt of around £300 million against a company owned by the appellant, who resided in Monaco.

It obtained an order under CPR 71.2 requiring the company to attend court to be cross-examined and produce documents.

Following the company’s failure to comply fully with the order, Deutsche Bank obtained an order for committal.

The appellant argued that the court had no jurisdiction to hear committal proceedings, asserting that it was not open to Deutsche Bank to make the committal application under CPR 81.4 rather than CPR 71.8, which contained a power to commit; and that the committal application was not incidental to the CPR 71 order, so permission to serve out was required.

In dismissing the appeal, the Court of Appeal observed that the decision highlights the tension between enforcing court orders on the one hand and keeping within the jurisdictional limits of the court, especially when individual liberty is at risk, on the other.

Deutsche Bank can now serve the order for committal on the appellant in Monaco, requiring him to attend court in England and provide information and documents about his assets, failing which the appellant could face imprisonment.

The Court of Appeal held that it was in the public interest that there should be a specific jurisdictional gateway in Practice Direction 6B permitting service on an officer of a company for contempt of an order made under CPR 81 or CPR 71, where the fact that he was out of the jurisdiction was no bar to the making of a committal application.

It noted that consideration of this issue by the Civil Procedure Rule Committee would be most welcome.

As well as providing Court of Appeal authority that a committal application can be made under CPR 81.4 to enforce an order under CPR 71.2, the decision confirms that the power to commit in CPR 71.8 is aimed at more straightforward cases, while the power to commit in CPR 81.4 is appropriate for more complex cases, including those involving a failure to comply with an order made under CPR 71.2.

Chapter 11 proceedings recognised re English company with UK centre of main interests 

In Re Videology Ltd [2018] EWHC 2186 (Ch),

the High Court granted recognition and discretionary relief under the Cross-Border Insolvency Regulations 2006 to an English incorporated member of a group of companies which was subject to Chapter 11 proceedings under the US Bankruptcy Code.

It held that that the Chapter 11 proceedings were foreign non-main proceedings, the company having its centre of main interests in the United Kingdom but an establishment in the United States.

The court also granted discretionary relief.

It did so on the basis of the moratorium applicable in an English administration to protect the company from claims by individual creditors and against the commencement of collective insolvency proceedings in the United Kingdom without court consent, and to allow the sale of its assets and the distribution of the proceeds to take place in the United States.

Jurisdiction over claim under 2001 Brussels Regulation for losses incurred by Austrian investor in relation to bearer bonds (ECJ)

In Löber v Barclays Bank plc (Case C-304/17) EU:C:2018:701

the European Court of Justice ruled that, for the purposes of Article 5(3) of the 2001 Brussels Regulation, in a tort claim by an individual Austrian investor for losses arising out of bonds purchased in reliance on a prospectus issued by Barclays Bank plc, the courts of the Austrian investor’s domicile had jurisdiction as the place where the harmful event occurred, where the damage consists of financial loss which occurred directly in an Austrian investor’s bank account.

The European Court of Justice referred to

Kolassa v Barclays Bank plc [2015] EUECJ C-375/13

in which it ruled that the courts of the investor’s domicile (Austria) had jurisdiction under Article 5(3) because the alleged damage materialised directly in the investor’s Austrian bank used to pay for the bonds.

It also referred to

Universal Music International Holding BV v Tetreault Schilling (C-12/15)

in which it held that the “place where the harmful event occurred” will not normally be the place where damage occurred if the damage consists exclusively of financial damage materialising directly in the claimant’s bank account, and directly resulting from an unlawful act committed in another member state.

The court in Universal Music noted that Kolassa reflected the specific context of that case, in particular the existence of circumstances contributing jurisdiction to those courts, and that purely financial damage occurring directly in the investor’s bank account cannot, in itself, be a relevant connecting factor pursuant to Article 5(3).

Here, the court concluded that, taken as a whole, the specific circumstances of the case contributed to attributing jurisdiction to the Austrian courts.

In particular:

  • All payments were made from Austrian bank accounts.
  • The Austrian investor acquired the certificates on the Austrian secondary market.
  • The information supplied to Löber about the certificates was in the prospectus as notified to the Austrian supervisory bank and on the basis of that information, the Austrian investor signed the contract in Austria.

The ruling is relevant to claims under Article 7(3) of the Recast Brussels Regulation, which is materially the same.

Supreme Court refuses permission to appeal judgment on territorial jurisdiction in damages actions based on LCD and CRT cartels

The Supreme Court has refused the defendants permission to appeal against a Court of Appeal judgment that ruled on jurisdiction issues in two separate damages actions, brought by the claimants, based on the liquid crystal display cartel and on the cathode ray tube cartels.

The Court of Appeal ruled that the actions should not be struck out nor summary judgment given.

The claimants were claiming damages due to the allegedly higher purchase prices that they paid due to the cartels.

However, the cartel products had first been supplied to entities outside the European Union/ European Economic Area then to a claimant holding company also outside the European Union/ European Economic Area, which then supplied the products to claimant subsidiary companies within the European Union/ European Economic Area for onward sale and distribution within the European Union/ European Economic Area.

The defendants had argued that the claimants would not be able to establish that they had suffered losses as a consequence of a breach of Article 101 of the Treaty on the Functioning of the European Union and that the High Court, therefore, had no territorial jurisdiction to hear the actions.

The Court of Appeal held that the issue of territorial jurisdiction could not be determined adversely to the claimants on a summary basis.

It held that the analysis of the territorial application of Article 101, in accordance with the qualified effects doctrine, would depend on a full examination of the intended and actual operation of the cartels as a whole.

The Court of Appeal also held that it was reasonably arguable that the cases were governed by the European Union law and that the forum to hear the actions should be England and Wales.

The actions should proceed to trial.

Final text of UNCITRAL Model Law on recognition and enforcement of insolvency-related judgments published

The United Nations Commission on International Trade Law has now published the final, adopted text of the United Nations Commission on International Trade Law Model Law on recognition and enforcement of insolvency-related judgments.

The Model Law on the recognition and enforcement of insolvency-related judgments is a legislative framework capable of adoption into countries’ domestic legislation and allows for the recognition of judgments arising out of insolvencies in cross-border situations.

It addresses the concern that, though there are various cross-border frameworks for the recognition and enforcement of judgments in civil and commercial matters, such frameworks generally do not cover insolvency-related legal proceedings.

The new model law is drafted as a standalone legislative framework but may also supplement the United Nations Commission on International Trade Law Model Law on Cross-Border Insolvency, adopted by United Nations Commission on International Trade Law on 30 May 1997, which provides for the recognition of, and cooperation in, cross-border insolvency proceedings.

The 1997 Model Law does not, however, provide for the cross-border recognition and enforcement of judgments arising out of the insolvency proceedings generally.

The new model law is intended to plug gaps in the existing United Nations Commission on International Trade Law framework for cross-border insolvency cooperation.

The minutes of the United Nations Commission on International Trade Law session also indicate that legislative text in the form of a further model law, addressing the cross-border insolvency of enterprise groups, as well as recommendations and commentary on the obligations of enterprise group directors in the period before insolvency, are likely to come before it for approval in 2019.

The former defined term “insolvency-related foreign judgment” has been changed to “insolvency-related judgment” although the law still only comes into play where a judgment given in one enacting state is to be recognised or enforced in another state (article 1, Model Law).

The Model Law draftsmen expressly chose not to define “insolvency-related judgments” by using similar wording used in the Recast Insolvency Regulation ((EU) 2015/848).

That Regulation defines the types of legal actions that are sufficiently connected with insolvency proceedings that they should be subject to the same jurisdiction as the insolvency proceedings being “any action which derives directly from the insolvency proceedings and is closely linked with them” (Article 6, Recast Insolvency Regulation).

Instead, the Model Law uses the formula “arises as a consequence of or is materially associated with an insolvency proceeding”.

This change was intentional, to avoid confusion with European Union terminology and to avoid suggestions that it should be interpreted in the same way.

This is helpful, as the purpose of the Model Law to regularise the cross-border recognition of insolvency-related judgments is different from the purpose of the Recast Insolvency Regulation to allocate jurisdiction over the underlying actions.



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October 4, 2018 at 8:05 am

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In Hanley v JC & A Solicitors and Green v SGI Legal LLP [2018] EWHC 2592(QB).

the Queen’s Bench Division, on appeal from the Senior Courts Costs Office, held that the court had no power to order a solicitor to make and supply to her or his client, or former client, copies of documents which are the property of the solicitor, even if the client/former client was prepared to pay reasonable costs for that task.

The court held that it neither had any inherent jurisdiction in its capacity as a court supervising officers of the court, nor under section 68 of the Solicitors Act 1974.

Thus the High Court upheld the decisions of the Senior Courts Costs Office in each of these cases and overruled the decisions in

Swain v JC & A Ltd [2018] EWHC B3 (Costs) ; and

The Mortgage Business PLC and others v Taggart [2014] NICh 14

a decision of the High Court in Northern Ireland.

These cases are parts of a body of cases involving low value personal injury claims funded by Conditional Fee Agreements, and which have attracted significant judicial attention.

Section 68 of the Solicitors Act 1974 provides:

“(1) the jurisdiction of the High Court to make orders for the delivery by a solicitor of a bill of costs, and for the delivery up of, or otherwise in relation to, any documents in his possession, custody or power, is hereby declared to extend to cases in which no business has been done by him in the High Court.”

Here, in each case, the clients/former clients retained the solicitors in relation to the recovery of compensation for injuries sustained in a road traffic accident and the retainer was a Conditional Fee Agreement entered into after recoverability and limiting the solicitors’ recovery of their success fee to the statutory maximum of 25% of the relevant damages recovered.

Upon settlement of each claim that total percentage, and the After-the-Event premium in addition, was deducted.

In each case the clients instructed fresh solicitors for the initial purpose of obtaining advice on whether to exercise their right to a detailed assessment of the solicitors’ fees pursuant to section 70 of the Solicitors Act 1974 which allows the High Court to make an order for assessment of the solicitor’s bill by the court.

Although the specific facts of the request for documents varies, in the Hanley case JC & A offered to supply copies of documents belonging to them for a fee of £644, based on 4 hours’ work at £161 an hour, and the former clients refused to pay that sum.

In the other case the solicitors refused to supply any documents belonging to themselves.

The case sets out the authorities in detail, both in relation to the Solicitors Act 1974 and the court’s inherent jurisdiction over solicitors in their capacity as officers of the court.

The court held that it had no jurisdiction to make orders under the inherent jurisdiction and/or section 68 of the Solicitors Act 1974 in respect of documents which are the property of the solicitors.

It said that, as a matter of principle, an order for delivery up or otherwise in relation to property belonging to another must have an explicit legal basis.

The powers in section 68 are derived from the inherent jurisdiction of the court, and not from the Solicitors Act itself.

The section simply extends the reach of the jurisdiction to cases in which no business has been done in the High Court.

It reflects the provisions of successive statutes governing solicitors.

Thus the scope of the jurisdiction is to be identified from case law, rather than interpretation of the statute itself.

Here, the High Court found that case law gave no authority for the proposition that the court has a discretion under its inherent jurisdiction to order up delivery of, or make other orders in respect of documents, which belong to the solicitor.

If the document and its contents are the property of the solicitor, which the solicitor is entitled to retain, then there is no basis for circumvention of that proprietary right by some other form of order.

The court referred, with approval, to the publication by the Law Society – “Who owns the file?”

These critical requirements of ownership cannot be overcome by reference to section 68, or the overall purpose of Part III of the Solicitors Act 1974, nor by analogy with the pre-disclosure provisions of CPR 31.6, nor with the court’s powers on a section 70 application, nor with the rationale of the required ingredients of a Statute Bill or the requirements of Practice Direction 46, paragraph 6.4.

The inherent jurisdiction of the court does not provide a form of pre-action disclosure of documents belonging to the solicitor.

In so far as the Law Society’s letter of 28 June 2018 says otherwise, then it is wrong, as are the decisions in Swain and Taggart.

I am grateful to JC & A Solicitors, both for supplying me with the judgment, and for successfully protecting the legal profession.


A helpful and practical decision which it is hoped will end these fishing expeditions and applications.

It is another example of the Superior Courts fighting desperately to preserve a legal and justice system on the point of disintegration.

Written by kerryunderwood

October 3, 2018 at 10:20 am

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