Kerry Underwood

RYANAIR LIENS CASE GOES TO SUPREME COURT

with 2 comments


Underwoods Solicitors have been advising and assisting Bott & Co Solicitors Ltd in relation to this matter.

 

Bott & Co Solicitors Ltd have been granted permission to appeal to the Supreme Court by the Supreme Court itself in relation to the issue of solicitors’ liens where a third party – Ryanair here – deliberately sends damages to the client, and not the solicitor acting for the client.

Very obviously that acts as a major disincentive to solicitors to take the risk of working on a no-win, no-fee basis where there will be no fund from which to take the costs.

It was thought that this issue had been put to bed by the Supreme Court itself in

Gavin Edmondson Solicitors Ltd v Haven Insurance Company Ltd [2018] UKSC 21     

where it held that Haven Insurance must pay to the solicitors the costs that were due to the solicitors from their own client in circumstances where the insurance company had paid damages direct to the solicitor’s client.

Any other decision would effectively render the Courts and Legal Services Act 1990, with its introduction of Conditional Fee Agreements, useless and remove the major current method of providing access to justice, following the removal of legal aid.

Here, in

Bott & Co Solicitors Ltd v Ryanair DAC [2019] EWCA Civ 143

the Court of Appeal, in a decision bizarre even by its own recent anti-access to justice stance –

(see Herbert v HH Law [2019] EWCA Civ 527 )

declined to follow the Supreme Court’s decision in Edmondson, technically distinguishing it on grounds that would cause a first day trainee at my firm to get a rollicking.

Had Ryanair’s conduct been that of a solicitor it would be in clear, repeated and serious breach of the Solicitors Code of Conduct specifically indicative behaviour 11.4 which provides that you must ensure that you do not communicate with another party when you are aware that the other party has retained a lawyer in a  matter, except:

(a) to request the name and address of the other party’s lawyer; or

(b) the other party’s lawyer consents to you communicating with the client; or

(c) where there are exceptional circumstances.

see my blog –

SOLICITORS DENIED LIEN; THE RYANAIR CASE

After the Unison decision, where again the Supreme Court had to overturn an anti-access to justice Court of Appeal decision, this is the most important access to justice matter to go to the Supreme Court in recent years.

I understand that the Law Society declined to intervene in relation to the Permission to Appeal stage.

It is to be hoped that the Law Society now takes a different view and intervenes in this matter of great importance to all solicitors – and most importantly their clients – whatever type of work is involved.

Here is my comment on the Court of Appeal decision in this case.

 

The Senior Judiciary need to think through rather more carefully the whole issue of access to justice and litigation and how it may be delivered.

At one level, lawyers are being encouraged to use portals and follow protocols and do everything to avoid litigation, and yet Bott & Co Solicitors Limited appear to be being punished for using such a scheme, and for making significant profits from it.

What on earth is the relevance to the legal principles of the fact that Bott’s income from claims against Ryanair was over £100,000 a month? (see Paragraph 16 of the judgment).

What is the relevance of the number of claims that Bott were handling, except to show the success of the scheme and the attraction to members of the public?

So, at one level, we are consistently urged to be efficient and be a business, with the provision of legal services opened up to every Tom Dick and Harry, but when a firm does exactly that they are punished by the courts by being refused a lien.

I can see no logical difference between the pre-action road traffic portal, where 99% of cases are settled, and the scheme operated by Bott & Co Solicitors Limited.

This decision should be overturned by the Supreme Court.

 

I deal with the decision of the High Court and the Supreme Court in my blogs –

COURT REFUSES TO GRANT SOLICITOR LIEN FOR COSTS ; and

SOLICITORS’ LIENS, RETAINERS, CFA LITE AND UNCONSCIONABLE CONDUCT – THE HAVEN INSURANCE COMPANY CASE

 

Underwoods Solicitors have been advising and assisting Bott & Co Solicitors Ltd in relation to this matter.

Written by kerryunderwood

November 28, 2019 at 6:57 am

Posted in Uncategorized

2 Responses

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  1. I don’t know, I find your reaction a bit extreme Kerry. First, abysmal as Ryanair are, Bott & Co also seem like a bunch of ambulance chasers to me and I see no injustice in them being required to sue for their fees in the same way that the rest of us are. Money-Claims-Online only costs £60 and they can add that to the amount recovered. £100,000 a month is an obscene amount of money to be making, anyway. Their claim to an equitable lien seems a bit holier than thou to me, and I don’t think you really get where the CA are coming from in trying to draw the line on equitable lien. Anyway, Bott & Co could easily protect themselves with a term in their contract couldn’t they? All my instincts say any lien in this area should be contractual not equitable. Why send in the fleet-footed horses of equity like thieves in the night? Just get the customer to agree. Where I do think the CA went wrong, however, is on the second ground of appeal – Ryanair’s contract seems to undermine the EU Regulation, is clearly a “limitation” of a simply practical kind, and they need their wings clipped on that one.

    Matthew Seligman

    November 28, 2019 at 9:57 am

  2. Matthew

    I totally disagree and you don’t have to sue for your fees if the other side pays your client direst – that case law goes back 300 years.

    They have protected themselves in the contract – like we all do – unfortunately not every client or customer pays up simply because the contract says they must.

    Anyway – I have a compromise. Airlines let us fly without paying and then try and get the fares from us afterwards.

    The key here is that if this decision is upheld solicitors will think very carefully before acting on a conditional fee agreement without money upfront – which many clients cannot afford.

    This is a key access to justice issue.

    Kerry

    kerryunderwood

    November 28, 2019 at 12:32 pm


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