Ahmed v The Bread Roll Company Ltd, Court of Appeal - Supreme Court Cost Office, February 12, 2009, [2009] EWHC 90141 (Costs)

Issuing Organization:Supreme Court Cost Office
Actores:Ahmed v The Bread Roll Company Ltd
Resolution Date:February 12, 2009
 
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Neutral Citation Number: [2009] EWHC 90141 (Costs)

Case No: 08.A.2063

IN THE HIGH COURT OF JUSTICE

SUPREME COURT COSTS OFFICE

Clifford's Inn, Fetter Lane

London, EC4A 1DQ

Date: 12 February 2009

Before :

MASTER O'HARE, COSTS JUDGE

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Between:

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Mrs Victoria Williams (instructed by Ess Ess Bilan, Solicitors) for the Claimant

Mr Stephen Cottrell (instructed by Debenhams Ottaway, Solicitors) for the Defendant

Hearing date: 2 November 2008

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Judgment

Master O'Hare:

1. A consent order dated 14 April 2008 and made in the Willesden County Court transferred to the Costs Office the Claimant's ``applications for directions to determine the issue of enforceability of the conditional fee agreement ... [to] be listed for hearing in accordance with [the SCCO's] directions''. From this I deduce that this matter has been assigned to me sitting as a Deputy District Judge of the Willesden County Court, to undertake, subject to my rulings on preliminary issues herein, the detailed assessment of this bill.

2. At the hearing before me both sides were represented by counsel. The Claimant was represented by Mrs Victoria Williams and the Defendants were represented by Mr Stephen Cottrell. I received skeleton arguments from each side and a witness statement from Mr Suki Bilan, the Claimant's solicitor, on the basis of which Mr Bilan gave evidence and was cross-examined.

3. This is my decision on the preliminary issues which were argued before me. Put very simply the problems arise here because the conditional fee agreement (``CFA'') in question was made on 20 December 2001 but is dated some seven months earlier, 22 May 2001. Issues also arise as to compliance with the CFA Regulations 2000 in respect of the CFA and in respect of the information given as to after the event insurance. As happens all too frequently in costs cases, it is necessary to set out at length some of the relevant statutory material, and I must also summarise some of the guidance given in the two important Court of Appeal cases concerning them.

4. Section 58 of the Courts and Legal Services Act 1990 permits legal representatives to enter into CFAs. As amended by the Access to Justice Act 1999 it provides:

"(1) A conditional fee agreement which satisfies all of the conditions applicable to it by virtue of this section shall not be unenforceable by reason only of its being a conditional fee agreement,; but (subject to subsection (5)) any other conditional fee agreement shall be unenforceable.

(2) For the purposes of this section and section 58A-

(a) a conditional fee agreement is an agreement with a person providing advocacy or litigation services which provides for his fees and expenses, or any part of them, to be payable only in specified circumstances; and

(b) a conditional agreement provides for a success fee if it provides for the amount of any fees to which it applies to be increased, in specified circumstances, above the amount which would be payable if it were not payable only in specified circumstances.

(3) The following conditions are applicable to every conditional fee agreement -

(a) it must be in writing;

(b) it must not relate to proceedings which cannot be the subject of an enforceable conditional fee agreement; and

(c) it must comply with such requirements (if any) as may be prescribed by the Lord Chancellor.

(4) ...''

5. The Conditional Fee Agreements Regulations 2000, which came into force on 1st April 2000 include the following provisions:

"Information to be given before conditional fee agreements made

4 (1) Before a conditional fee agreement is made the legal representative must -

(a) inform the client about the following matters, and

(b) if the client requires any further explanation, advice or other information about any of those matters, provide such further explanation advice or other information about them as the client may reasonably require.

(2) Those matters are:

(a) the circumstances in which the client may be liable to pay the costs of the legal representative in accordance with the agreement,

(b) the circumstances in which the client may seek assessment of the fees and expenses of the legal representative and the procedure for doing so,

(c) whether the legal representative considers that the client's risk of incurring liability for costs in respect of the proceedings to which the agreement relates is insured against under an existing contract of insurance,

(d) whether other methods of financing those costs are available, and, if so, how they apply to the client and the proceedings in question;

(e) whether the legal representative considers that any particular method or methods of financing any or all of those costs is appropriate and, if he considers that a contract of insurance is appropriate or recommends a particular contract:

(i) his reasons for doing so, and

(ii) whether he has an interest in doing so;

(3) Before a conditional agreement is made the legal representative must explain its effect to the client

.........

(5) Information required to be given under paragraph (1) about the matters in paragraph 2 (a) to (d) must be given orally (whether or not it is also given in writing), but information required to be so given about the matters in paragraph 2 (e) and the explanation required by paragraph (3) must be given both orally and in writing".

6. In Hollins v Russell [2003] 1 WLR 2487 the Court of Appeal decided that, in determining whether Regulation 4 has been complied with, the Court must ask itself:

"Has the particular departure from a regulation pursuant to section 58 (3) (c) of the 1990 Act or a requirement in section 58, either on its own or in conjunction with any other departure in this case, had a materially adverse effect either upon the protection afforded to the client or upon the proper administration of justice?"

7. In Garrett v Halton BC [2007] 1 WLR 554 the Court of Appeal held [in para 19] that:

"The "protection afforded to the client" is a reference to the protection afforded by virtue of the 2000 Regulations. If paras 106 and 107 [in Hollins] are read as a whole, the court was saying that, if there has been a failure of substantial compliance or a material departure from what is required by the 2000 Regulations, that failure or departure of itself has a material adverse effect on the protection afforded to the client or upon the proper administration of justice".

BACKGROUND FACTS

8. The claim in this case arose out of an accident at work which happened on 10 March 2001. The letter before claim was sent on 21 August 2002 and proceedings were commenced in the Willesden County Court on 4 March...

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