CONSEQUENCES OF BEATING A PART 36 OFFER: INJUSTICE

There have been various cases recently on how the courts consider whether it would be “unjust” to apply the consequences of CPR 36.17.

In White -v- Wincott Galliford Limited [2019] EWHC B6 (Costs) it was held that it would be unjust to allow an additional amount (CPR 47.17(4)(d)) for the whole of a claim where the offer had only related to some of the issues.

In Invista Textiles & Anor -v- Adriana Botes & Ors (costs judgment unreported) it was held that there is a high bar to demonstrate injustice. The ratio of the judgment suggests that the amount by which an offer has been beaten is at least not the only criterion which the Court should consider. Where a defendant / paying party seeks to argue that it would be unjust to allow some of all of the consequences of CPR 36.17 claimants / receiving parties would do well to refer to this authority as an example of the threshold for “injustice” which must be met.

It should also be noted that the court has previously held that the amount of the additional amount itself cannot be taken into account when considering whether it would be “just” to award the consequences of Part 36.17 per Cashman -v- Mid Essex Hospital Services NHS Trust [2015] EWHC 1312 (QB). In that case, the court on appeal held that the assessing officer had erred in refusing to award the additional amount “not because he considered the making of such an award unjust, but because he thought it unjust to make an award of the required amount”.

There is currently some inconsistency in the judicial approach to the application of the test of injustice. In the opinion of the author, the test is a high bar (supported by White and Invista) and the mere fact that the additional amount of 10% may appear high does not of itself render the consequence “unjust”. The consequences of CPR 36.17 are intended to be punitive and the purpose of the exception for “injustice” is not to allow judges to “soften the blow” to a litigant which has failed to accept a Part 36 offer, but to avoid genuine injustice where there are “exceptional” circumstances.

Matthew Rose is an Associate in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact him at matthew.rose@clarionsolicitors.com and 0113 222 3248. You can contact the Clarion Costs Team on 0113 246 0622.

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THIRD PARTY FUNDING – A VIABLE OPTION FOR 21ST CENTURY LITIGATION (Part 2)

This series of blog articles will address the increasing viability of third party funding as an alternative to traditional litigation funding methods. It will look at how the law has developed historically and how the Court now approaches third party funding and the potential liability of third party funders.

The second part of this series will explore the Court’s first acceptance of third party funding in the matter of Factortame Ltd v Secretary of State for Transport, Local Government and the Regions No.8 [2002].

Background

This matter related to a challenge brought by Spanish fisherman who sought to claim damages against the Secretary of State for the unlawful prohibition of fishing in UK territorial waters. A firm of accountants agreed with the Claimants to prepare and submit claims for loss or damage as a result of any losses suffered. The Accountants agreed to act in return for 8% of any damages recovered.

The Claimant’s succeeded in their challenge and were awarded damages and costs. On a preliminary issue the agreement was held to be not champertous and could be enforced against the Secretary of State.

The Defendant’s Challenge

The Defendant claimed that such an agreement was champertous and unlawful. It was argued that for an expert to act on a contingency fee basis would give the expert a significant financial interest in the case which is highly undesirable.

Decision

As stated in my previous blog, the tort of champerty had been abolished and the starting point for considering any arrangement was that it would be presumed enforceable unless there was a valid reason as a matter of public policy.

The Accountants had not acted as experts directly in this matter but had instead funded independent experts. Furthermore, by the time that they were instructed the issue of liability had already been decided.

Therefore, the Court held that such an agreement was not in the circumstances champertous or against public policy.

In the next part of the series…

The next blog will take a look at the liability of third party funders in litigation in the matter of Arkin v Borchard Lines Ltd (nos 2 and 3) [2005] 1 WLR 3055.


This blog was prepared by Kris Kilsby who is an Associate Costs Lawyer at Clarion and part of the Costs Litigation Funding Team.  Kris can be contacted at kris.kilsby@clarionsolicitors.com or on 0113 227 3628.

NB, Re (Consent to sex) [2019]- After 27 Years of marriage, did the Protected Party have capacity to marry and consent to sexual relations with her husband?

The Protected Party came to live in the UK in 1985 and married her husband in 1992. The marriage was contracted abroad. When the Protected Party first came to live in the UK she did so without her husband. There was a period in which the couple were separated whilst her husband made an application for permission to enter the UK, but in May 1996, the Protected Party travelled abroad to return to live with her husband. Following a series of applications to the Home Office throughout 1997, the couple came, eventually, to live together in London. They lived with the Protected Party’s parents and a year later their daughter was born.

The question was brought to the Court relating to the Protected Party’s capacity to marry and subsequent capacity to consent to sexual activity.

Mr Justice Hayden reviewed a letter to the Immigration Appeals department, that was brought before him by the Official Solicitor, dated March 1996, in which a clinical psychologist, Ms Suzanne Wilson, stated:

‘I believe Protected Party’s experience of her husband’s absence is stressful due to her attachment and affection towards him which has developed during their periods together. In her daily life the Protected Party consistently demonstrates her intense attachment to her husband. She often says his name with affection. She repeatedly asks where he is and pleads that he should be with her. She appears to understand the lasting nature of marriage, including that of marriage as a committed sexual bond between a man and a woman. It is my view that the Protected Party would be very unlikely to have such an affectionate attachment to her husband if this were not on a mutual basis and I therefore believe that her attachment can be taken as evidence of her husband’s positive attention and caring towards her when they are together’.

It is important to note that the Protected Party suffered from what is referred to as ‘general global learning difficulty’ and ‘an impairment’ in relation to her ability to communicate with others. She has been, at least historically, assisted using Makaton sign language and her sentences were limited.

As a result of a number of remarks the Protected Party made to her dentist, in October 2014, a safeguarding enquiry was instigated. There is no record of what it was that she said to the dentist, but it was clear that it had something to do with the quality of her relationship with her husband and it was such as to give rise to a concern that she might be vulnerable to sexual exploitation. Very quickly, an education programme was put in place focusing on sex education, relationships, contraception, sexually transmitted diseases as well as more general issues relating to Protected Party’s health.

The conclusion of the assessment was that the Protected Party was unable to demonstrate an appreciation of why people got married, separated or divorced. It was concluded that she lacked the mental capacity to marry. In respect of her capacity to consent to sexual relations it was considered that she lacked an understanding of the association between sexual intercourse and pregnancy. Inevitably, it followed, that she could not link various forms of contraception to the concept of averting pregnancy. She did not have the capacity to retain information in relation to these issues. It was also considered that she was unable to communicate the concept of refusal of sex to her husband.

The Protected Party’s husband was a man in his early 50’s who has never been in any trouble with the police. It was agreed that there had been no concerns expressed by any of the professionals in relation to his behaviour either more recently or historically.

The couple found themselves in a challenging situation in which their private and sexual life was being scrutinised by a variety of professionals. Whilst the Protected Party’s husband was being analysed, he appeared both frightened and embarrassed when he came to Court. On 29 March 2019, when the matter was brought to Court there had been an agreement between the Protected Party’s husband, the Applicant and the Respondent that the case would proceed by way of the Protected Party’s husband giving an undertaking to the Court not to sleep with his wife.

Mr Justice Hayden concluded that he was “Reserving Judgment in order that I can take the time to look carefully and in some detail at the case law and its applicability to the facts of this case. It would appear, that it requires to be said, in clear and unambiguous terms that I do so in order to explore fully Protected Party’s right to a sexual life with her husband and he with her, if that is at all possible.

If you have any queries, please do not hesitate to contact Georgia Clarke (georgia.clarke@clarionsolicitors.com) or the team at COPCosts@clarionsolicitors.com.

Court of Protection Costs – Types of Assessments for your Costs.

The previous blog in this series focused on the process of what goes into a Bill of Costs in the Court of Protection world. This blog will instead look at the process of an assessment in the Court of Protection and the different types of assessment that can occur.

Firstly, authority for the cost’s assessment must be established, as all Orders as to costs are at the discretion of the Court of Protection. There are three main methods of evaluating costs; agreed costs, fixed costs and summary/detailed assessment of Costs.

  • Agreed Costs

These kinds of costs Order are not regularly available in Court of Protection cases. As a principle, all bills of costs must be assessed, except where fixed costs are available. However, the Court may authorise parties to agree costs, where appropriate to do so. This is often used upon the death of a Protected Party whereby the Deputy is expected to agree costs with the Executor of the estate.

  • ­Fixed Costs

­Found within Practice Direction 19B, fixed costs are available to solicitors and professionals acting as Deputy. The general rule is that costs of the proceedings should be paid by P or charged to their estate, but this rule can be departed from.

In Cases where fixed costs are not appropriate, professional Deputies may, if preferred, apply to the SCCO for a detailed assessment of costs. However, this does not apply if P’s net assets are below £16,000. In these cases, the option for detailed assessment will only arise if the Court makes a specific order.

  • Detailed Assessment

The detailed assessment of costs under Orders or Directions of the Court of Protection is dealt with in accordance with the Civil Procedure Rules. Professional Deputies should lodge a request for detailed assessment with the SCCO (not the Court of Protection or the Office of Public Guardian) using the N258B (request for detailed assessment), accompanied by:

  • The bill of costs;
  • Documents giving the right to detailed assessment;
  • Copies of all the orders;
  • Fee notes of counsel or experts;
  • Details of other disbursements;
  • Postal Address of any person who has a financial interest in the outcome of assessment;
  • Relevant assessment fee (£115 or £225);
  • The OPG105 (if applicable).

Part 27 of the Practice Direction 17.2(2) states that cases over £100,000.00, complex or other cases are to be dealt with by a Master. The relevant papers in support of the bill must only be lodged if requested by the Master.

Once the bill of costs is lodged in the correct manner, the Costs Officer will review the bundle of documents and assess the costs. The Costs Officer will review the bill of costs alongside the files of papers and decide whether costs have been reasonably, necessarily and proportionately incurred, making reductions, where necessary based on relevant case law and judicial decisions. The bill of costs is thereafter returned to the Deputy for consideration.

Clarion can also assist with requests for reassessment if the outcome is not as expected. If you would like further information about this process, then please do not hesitate to get in contact.

Joshua Sidding is a Paralegal in the Court of Protection Team of the Costs and Litigation Funding Department at Clarion Solicitors. You can contact him at Joshua.sidding@clarionsolicitors.com and 0113 222 3245, or the Clarion Costs Team on 0113 246 0622.

You can also take advantage of our free telephone advice service – available outside of office hours – by calling 07764 501252.

Successful appeal against a Judge’s decision in respect of the Protected Party’s Deprivation of Liberty

In the case of CB v Medway Council & Anor (Appeal) [2019] EWCOP, the Official Solicitor appealed against a decision which justified the Protected Party’s Deprivation of Liberty.

The Protected Party was a 91 year old female, who no longer lived at her own property following a fall and persistent urinary tract infections. The Protected Party resided at a care home and was provided with a care package, which ultimately was said to have not worked out. The Protected Party’s litigation friend, the Official Solicitor, made an application to enable the Protected Party to reside at her own property, however, the Judge dismissed this application using her summary power.

The Official Solicitor disagreed with the decision of the Judge and therefore appealed the same. The Official Solicitor argued that the Judge did not abide by her duty to ensure that the Protected Party’s best interests were considered as the Judge had failed to allow the Official Solicitor to gather further evidence to support the argument in relation to the feasibility of the Protected Party returning to live at her property. The Court allowed the appeal as the Protected Party’s Deprivation of Liberty should have been considered and thoroughly explored, rather than the Judge dismissing the application based on speculation and general experience within similar cases.

If you have any queries, please do not hesitate to contact Casey McGregor or the team at COPCosts@clarionsolicitors.com

Could breaching a transparency Order ultimately lead to an application for imprisonment?

In the case of Office of the Public Guardian v Stalter [2018] EWCOP 27, an application was made by the Office of the Public Guardian to commit the Protected Party’s partner to prison due to him disclosing information that was in breach of a transparency Order.

The Protected Party had been diagnosed with dementia in March 2016, from October 2016 to January 2018, the Protected Party’s partner, named Mr Stalter, had communicated with a number of different people in a certain way which lead to a breach of the transparency Order. The transparency Order stated that ‘proceedings were not to be published, nor were the identities of other parties to be published, nor was any information tending to identify those individuals as a patient or parties to be published, nor were their addresses or contact details to be published.’ During this communication to various individuals, Mr Stalter advised that the Protected Party was in fact subject to the Court of Protection proceedings and further advised on the individuals that were parties to the proceedings, which included himself. Mr Stalter further disclosed personal details, which was in fact prohibited by the transparency Order, therefore the Protected Party’s partner had breached the Order. The Office of the Public Guardian therefore wished to bring a committal Order.

Mr Stalter was found to be in contempt of Court, however the Court determined that no Order for his committal needed to be made having regard to the fact that he did confirm that he would abide by the Order. The Courts were of the opinion that no punishment would be appropriate for this case due to the fact that Mr Stalter had already suffered as a result of the situation.

If you have any queries, please do not hesitate to contact Casey McGregor or the team at COPCosts@clarionsolicitors.com

Success Fees and ATE Premiums post-LASPO – HH Law v Herbert Law Limited – Court of Appeal decision

The case of HH Law Limited v Herbert [2019] EWCA Civ 527

Background

This is a matter that was subject to a further appeal following the original appeal heard in March 2018. My colleague, Andrew McAulay, has prepared a useful summary of the outcome of that appeal and the background to the dispute which I will not repeat here.

Costs proceedings

In the subsequent appeal, HH Law (HH) sought to appeal two main areas; the reduction in the success fee, and the finding that the ATE Premium was a disbursement.

The Success Fee

The first ground of appeal put forward by HH was that, in a solicitor/client assessment, costs would be considered reasonably incurred and reasonable in amount if there had been express or implied approval by the client (CPR 46.9(3)). HH were able to successfully show that the documents provided to the client provided a ‘clear and comprehensive account of her exposure to the success fee and HH’s fees generally’.

However, it was under CPR 46.9(4) whereby the Court held that a success fee of 100% on the circumstances was unusual in both nature and amount. The Court of Appeal stated that the approach to calculating a success fee was to base it upon the solicitor’s perception of litigation risk at the time the agreement was made.

HH contended, within a witness statement, that it was a fundamental part of their business model to set the success fee on all cases at 100% irrespective of the litigation risk, and that such a business model was prevalent across the industry following the changes introduced by the Legal Aid, Sentencing, and Punishment of Offenders Act 2013 (LASPO). The Court of Appeal dismissed this approach and stated that there had been insufficient information provided to the client to ensure that informed consent was achieved in respect of the basis of setting the success fee at 100% for all cases irrespective of risk. The success fee was, therefore, held at 15%.

Comment: This may be considered an alarming result in the grand scheme of things and could lead to an increase in solicitor/client challenges to the level of success fee deducted from damages.

However, there is a simple solution to these challenges. The judgment firmly establishes that success fees should be calculated based upon the litigation risk at the date the agreement was entered. It is therefore essential to carry out a risk assessment when entering into the CFA.

The ATE Premium

HH had incurred the costs of the ATE premium and deducted it directly from the firm’s client account. Ms Herbert had contended that the premium was a disbursement and, therefore, could be challenged under a solicitor/client assessment. The Court carefully considered the definitions of what a solicitors’ disbursement was

‘a disbursement qualifies as a solicitors’ disbursement if either (1) it is a payment which the solicitor is, as such, obliged to make whether or not put in funds by the client, such as court fees, counsel’s fees, and witnesses’ expenses, or (2) there is a custom of the profession that the particular disbursement is properly treated as included in the bill as a solicitors’ disbursement’.

The Court came to the conclusion that an ATE premium did not fall within either definition, and that HH had been acting as an agent of the client when paying the ATE premium.

Comment: It was noted that the consequence of this finding would significantly reduce a client’s ability to challenge the amount of ATE premiums in future, and obiter, it was suggested that steps could be taken to bring ATE premiums within the definition of disbursements in future.

We still have places available at our next Costs and Litigation Funding Masterclass on 16 May 2019. https://lnkd.in/d33uy9e

This blog was prepared by Kris Kilsby who is an Associate Costs Lawyer at Clarion and part of the Costs Litigation Funding Team.  Kris can be contacted at kris.kilsby@clarionsolicitors.com or on 0113 227 3628.