law costs draftsman liverpool

Articles

23.02.05: Painting v University of Oxford

Supreme Court Costs Office [2006] EWHC 90054 (Costs) 8th September 2006.

This is a matter which was dealt with by Master Wright at the Supreme Court Costs Office. It related to a claim for costs made in respect of a high value personal injury claim.

Article written by Guy Platt-Higgins LLB(Hons), Director @ Law Costing Ltd.

The Claimant had initially instructed DAS panel solicitors. However, he was dissatisfied with the service being provided and moved his instructions to another firm. They initially acted under a private retainer but subsequently signed the client up to a CFA with ATE insurance.

The question for the Court to consider was whether the Claimant's solicitors had an entitlement to costs following an alleged breach of Regulation 4 of the CFA Regulations 2000 (since abolished).

Specifically, it was alleged that full and proper advice pursuant to CFAR had not been given to the Claimant at the time the CFA was entered into or at all.

 

The Claimant's solicitors relied upon a series of meetings with the Claimant when they gave costs advice at those meetings.

The Defendant's solicitors maintained that it was insufficient to assert that Regulation 4 advice had been provided on a piece-meal basis. The

 

Defendant's solicitors also maintained that it was inconceivable that full advice pursuant to Regulation 4 had been given having regard to the fact that the Claimant had previously been receiving legal representation from another firm under a DAS policy of indemnity.

Further, the Defendants alleged that household insurance policies ought to have been examined by the Claimants solicitors (rather than relying upon the Claimants own assertion that he was not able to benefit from any form of LEI insurance).

Essentially, this case had every topical costs ingredient:

 

  • Samonini - Was the question relating to alternative funding ever asked of the Claimant?
  • Sarwar - Were other forms of LEI considered properly?
  • Myatt - Is it reasonable to expect a client to understand what LEI is?
  • Culshaw/Goodliffe - Should a client not have to bring all insurance documentation in to be considered by his/her solicitor?
  • Hollins/Russell - Is a treasure hunt necessary?
  • CFAR 2000 - When does the Regulation 4 advice have to be given? Does it have to be done in one sitting or is it possible to rely upon aggregated advices?

 

Surprisingly, Garrett was not a live issue in this case!

 

In summary, it was decided that Regulation 4 advice was allowed to be aggregated over the course of meetings. There was no requirement to ensure that Regulation 4 advice was given during the course of one meeting. Nor was it necessary to prove that Regulation 4 advice is given immediately prior to entering into a CFA.

 

Further, unlike the unfortunate clients in Myatt, in this case, the Claimant was credited with the intelligence to understand what his solicitor was asking him when questioned about LEI.

 

This case is quite distinct from Garrett but less so, Myatt. Clearly, this case was dealt with on its own merit, however, it does appear to pre-empt what the House of Lords might say in Myatt.

 

The result is a success for solicitors acting for receiving parties, who may be forgiven for thinking that all of the case law emanating from the higher Courts advocates a "guilty until proven otherwise" theory when it comes to justifying CFAR advice which has been provided.