Ibbertson v MFI & Ors, Court of Appeal - Supreme Court Cost Office, January 30, 2009, [2009] EWHC 90132 (Costs)

Resolution Date:January 30, 2009
Issuing Organization:Supreme Court Cost Office
Actores:Ibbertson v MFI & Ors

Case No: 0805364



Clifford's Inn, Fetter Lane

London, EC4A 1DQ

Date: 30 January 2009

Before :


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Between :

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Andrew Nicol (instructed by Pattinson & Brewer) for the Claimant

Benjamin Williams (instructed by Keoghs LLP) for the Defendants

Hearing date: 8th January 2009

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Approved Judgment



The Issues

  1. On the 21 August 2004 the Claimant suffered serious personal injuries whilst she was a passenger in a car that was being driven by the First Defendant. The claim was settled without the issue of proceedings in March 2007 upon the Claimant accepting the Defendants' insurers' offer of £100,000 inclusive of interest and benefits. The Defendants agreed to pay the Claimants costs and an order for detailed assessment of those costs was made in costs only proceedings on the 5th June 2008.

  2. Messrs Pattinson and Brewer acted for the Claimant pursuant to a Conditional Fee Agreement dated the 21 January 2005 (``the CFA'') and this judgment primarily relates to the question of the enforceability of the CFA.

    The Relevant Regulations

  3. The Conditional Fee Agreement Regulations 2000 (as amended).

    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 reasonable require.

    (2) Those matters are -

    (a) - (d) ....

    (e) whether the legal representative considers 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 such contract -

    ii) his reasons for doing so, and

    iii) whether he has an interest in doing so.

    (3) Before a conditional fee agreement is made the legal representative must explain its effects 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 given about the matters in paragraph (2) (e) and the explanation required by paragraph (3) must be given both orally and in writing.

    The Evidence

  4. I have been supplied with a bundle of documents containing a witness statement from Linda Levison a partner with Pattinson & Brewer, the Claimant's solicitors, which is dated the 23 December 2008, the Conditional Fee Agreement dated the 21st January 2005, a Part 18 Request for Information served by the Defendants' solicitors together with its reply, and copies of correspondence passing between the Claimant and Pattinson & Brewer from 14 October 2004 up to the date the CFA was signed. I have also seen a copy of an attendance note dated the 30 November 2004.

  5. Paragraph (e) on page 4 of the CFA reads as follows:


    (i) In all the circumstances, on the information currently available to us, we believe that a contract of insurance with Freeclaim IDC is appropriate. Detailed reasons for this are set out in Schedule 2.

    (ii) In any event, we believe it is desirable for you to insure your opponent's charges and disbursements in case you lose.

    (iii) We confirm that we do not have an interest in recommending this particular insurance agreement.''

  6. The fifth paragraph on page 2 of a letter from Pattinson & Brewer to the Claimant dated 14 October 2004 reads as follows:


    I can recommend an insurance policy to cover the Defendants' costs which is provided by Freeclaim IDC. The premium for this policy will be £418.95 including Insurance Premium Tax.

    Whilst we are not insurance brokers, and cannot advise you as to all available Insurance products, it is our experience that the Freeclaim IDC premiums are very competitive and the policy provides an appropriate level of indemnity cover.

    It is my professional duty to advise you that Freeclaim IDC does refer some cases to this Firm, however, this has not influenced my recommendation to take out...

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