Overton v Horder, Court of Appeal - Supreme Court Cost Office, July 28, 2008, [2008] EWHC 90109 (Costs)

Resolution Date:July 28, 2008
Issuing Organization:Supreme Court Cost Office
Actores:Overton v Horder

Case No: PR 0504162Claim No: 5CK00028BAILII Citation Number: [2008] EWHC 90109 (Costs)IN THE HIGH COURT OF JUSTICESUPREME COURT COSTS OFFICEON TRANSFER FROM CLERKENWELL COUNTY COURTMASTER ROGERS SITTING AS A DEPUTY DISTRICT JUDGE OF CLERKENWELL COUNTY COURTDate: 28 July 2008Before :MASTER ROGERS- - - - - - - - - - - - - - - - - - - - -Between :- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -Mr Jamie Carpenter (Counsel) (instructed by Bolt Burdon Kemp) for the ClaimantMr Michael McGowan (Legal Executive) (instructed by GM Solicitors) for the DefendantHearing date: 20 June 2008- - - - - - - - - - - - - - - - - - - - -JudgmentMaster Rogers: THE ISSUE1. The issue in this case is whether the Claimant's CFA with her solicitors has been rendered unenforceable for failure by the latter to comply with Regulation 4(2)(e)(ii) of the Conditional Fee Agreements Regulations 2000.THE BACKGROUND2. On 21 January 2002 the Defendant rode his motorcycle into the side of the Claimant's car causing her to sustain soft tissue injuries to her neck and lumbar spine and leaving her with permanent back pain.3. The Claimant was referred to Bolt Burden Kemp (hereinafter referred to as ``BBK'') by the Accident Advice Helpline (hereinafter called ``AAH). On 8 July 2002 the Claimant entered into a CFA with BBK, having, three days previously, on 5 July 2002, taken out ATE insurance with NIG Skandia. The letter of claim was written on 15 July 2002 with liability being very promptly admitted by the Defendant on 25 July 2002.4. The parties being unable to agree the quantum of damages, proceedings were issued on 5 January 2005 but were settled on 23 February 2005 by a payment to the Claimant of £8,500 together with her costs to be assessed on the standard basis if not agreed.5. BBK's total bill including VAT and disbursements as lodged for assessment was in the sum of £12,303.97 which includes a success fee of 50 per cent on the base charges and the AEI premium of £837.90.6. Because the case emanated from Clerkenwell County Court detailed assessment proceedings were started, as they now have to be, in this office on 14 June 2005. The matter was balloted to Costs Officer Martin, who prepared for the assessment until shortly before the hearing, when the CFA challenge which has been brought before me, was raised and the parties agreed that the matter should be transferred to a Costs Judge for a decision on that preliminary issue.7. The matter was balloted to me at Costs Judge level, and, on 3 October 2006, I made an order that preliminary issues be listed for hearing on the next available date after 22 November 2006 with an estimated length of one day and that if the Claimant was going to produce any evidence in the form of witness statements these had to be filed by 25 October 2006, with the Defendant being given leave to serve a skeleton argument in relation to the preliminary issue within 14 days of receipt of that evidence.8. Finally, the Claimant was directed to file a response to the Defendant's skeleton within 14 days of receipt thereof.9. Unfortunately the court managed to mislay the file and it was only earlier this year that the parties pressed for the matter to be brought to a hearing. Accordingly the case was listed for detailed assessment before me on 20 June 2008.THE HEARING ON 20 JUNE10. Both parties filed skeleton arguments and in addition the Defendant's solicitors reconstructed the missing file and provided me with a helpfully full duplicate file and also with a folder of authorities.11. At the hearing I was also provided with details of the insurance certificate provided and replies to the amended points of dispute, as well as a letter from AAH relating to the ``vetting solicitor point''.12. Interestingly, and almost uniquely in my experience, no witness evidence was filed on behalf of the Claimant, something which the Defendant's advocate submitted was of great and significant importance.13. The amended points of dispute on behalf of the Defendant include the following:``Enforceability of the Claimant's Conditional Fee Agreement. For want of compliance with CFA Regulation 4(2)(e)(ii) SI 2000 No.692The Conditional Fee Agreement in this case dated 21 January 2002 has ostensibly been prepared...

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