Kerry Underwood

NO WASTED COSTS AGAINST LAWYERS ACTING ON CONDITIONAL FEE AGREEMENT

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The matters dealt with in this piece are examined in great detail in my three volume, 1,300 page book Personal Injury Small Claims, Portals and Fixed Costs – price £50 and available from Underwoods Solicitors here.

Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

In

Willers v Joyce & Ors [2019] EWHC 2183 (Ch) (08 August 2019)

the Chancery Division of the High Court dismissed an application under section 51 of the Senior Courts Act 1981 for a costs order against solicitors and counsel who had represented an unsuccessful claimant on a conditional fee basis.

The claimant brought, and lost, an action for malicious prosecution and abuse of process and, after the case had ended, the defendant joined in as costs defendants under CPR 46.2(1)(a)  the solicitors, leading counsel and junior counsel who had acted for the claimant, alleging that the main reason for the claim was the claimant’s lawyers’ wish to recover unpaid fees from previous cases.

The amount disallowed on detailed assessment in the previous case was a specific head of damages in the current action.

Although the claim was lost on the facts here, it is possible to claim costs as a head of damages

 – see my post – COSTS PERMITTED TO BE CLAIMED AS DAMAGES

reporting the case of

Playboy Club London Ltd v Banca Nazionale Del Lavora SPA [2019] EWHC 303 (Comm) (21 February 2019).

The decision contains no new law, but reviews the case law at length, including the key decision in

Sibthorpe v Southwark London Borough Council (Law Society intervening) [2011] EWCA Civ 25 .

The court reiterated the point that there is a strong public interest in ensuring that impecunious claimants can have access to justice, even if that means successful defendants are left out of pocket.

“54.In my judgment the principle that emerges clearly from the decisions of this Court in Tolstoy, Floods and Hamilton v Al Fayed is that there is a strong public interest in ensuring that impecunious claimants can have access to justice even if that means that successful defendants are left substantially out of pocket. Because of this, legal representatives should not be at risk of a third party costs order unless they are acting in some way outside the role of legal representative. The nature of the role of the legal representative means that the indicators useful in considering the liability of, for example, a pure funder, such as whether he has been closely involved in making decisions about the conduct of litigation or whether he has a substantial financial interest in the success of the litigation do not work. The legal representative will always be closely involved in taking decisions about the conduct of the litigation and will always have a financial interest in the outcome, particularly where he is working under a conditional fee agreement or because although he is invoicing the client regularly for work done, he knows that in practice he will never be paid unless the client wins the case.”

 

See my post – CONDITIONAL FEE AGREEMENTS, DAMAGES-BASED AGREEMENTS AND CONTINGENCY FEES

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Written by kerryunderwood

August 13, 2019 at 7:33 am

Posted in Uncategorized

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