MOTOR INSURANCE LAW & PRACTICE COSTS AND FUNDING UPDATE KATHARINE SCOTT 39 ESSEX STREET

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1 MOTOR INSURANCE LAW & PRACTICE COSTS AND FUNDING UPDATE KATHARINE SCOTT 39 ESSEX STREET INTRODUCTION 1 This paper is concerned with the following issues: (i) (ii) (iii) (iv) (v) When it is appropriate to enter into a conditional fee agreement in a road traffic case. Conditional Fee Agreements themselves and recent challenges to their enforceability. Additional liabilities and recent challenges. CFA lite and the new legislative proposals. An update on costs generally. ENTERING INTO A CFA 2 Many of the motor claims brought before the courts are funded by the policy of insurance of the driver involved. However: (i) where the driver claims for uninsured losses; and/or (ii) has no legal expense cover; and/or (iii) the claim is not one that can be said to be covered by the insurance policy (Slater v Buckinghamshire County Council [2004] EWHC 77 (QB)) it is appropriate for alternative funding to be obtained. 3 There have been a run of cases that have looked at the duties on a solicitor entering into a CFA with a claimant in a road traffic case under regulation 4(2)(c) of the Conditional Fee Agreement Regulations This requires a solicitor to inform the client whether the legal representative considers that the 1

2 client's risk of incurring liability for costs in respect of the proceedings to which agreement relates is insured against under an existing contract of insurance. 4 The extent of the enquiry that a solicitor must make has been the subject of a number of decisions: (i) (ii) (iii) Sarwar v Alam [2002] 1WLR 1217 paragraph 45 51: the solicitor should invite the client to bring any relevant motor insurance policy, household insurance policy or any stand-alone BTE insurance policy to the first interview. Where a claim is brought by a passenger, they should usually be asked to bring the driver s motor insurance policy where it is reasonably practicable. The guidance we have given in this part of our judgment should not be treated as an inflexible code. The overriding principle is that the claimant, assisted by his/her solicitor, should act in a manner that is reasonable. The availability of ATE cover at a modest premium will inevitably restrict the extent to which it will be reasonable for a solicitor s time to be used in investigating alternative sources of insurance. Jackson v Tierney Unreported HHJ George, 1 November 2002: where a solicitor is aware that the client holds a policy of insurance (be it motor of home) he/she should usually ask the client to produce it so the solicitor can consider the documents him/herself. The exception to this general rule would be were the client is educated about insurance (say another lawyer or insurance broker) and is reliable in relation to matters about which he is questioned. Hollins v Russell paragraphs : solicitors do not, ordinarily, have to disclose attendance notes showing compliance with regulation 4 unless there is a genuine issue as to compliance with it (para 81). There are limits to what can reasonably expected of the interchange between the solicitor and client where the client is an elderly lady severely injured in hospital. It would be ridiculous to expect a solicitor dealing with a seriously 2

3 ill old woman in hospital to delay making a CFA while her home insurance policy was found and checked. It is sufficient to satisfy section 58 that he had discussed it with her and formed a view on the funding options (iv) Culshaw v Goodliffe Unreported HHJ Stewart QC 24 November 2003: solicitor required to consider the relevant insurance policies themselves. The paying party cannot go ferreting around asking for documents. That has been disallowed by the Court of Appeal. But where it becomes apparent, as here that somebody in fact did have BTE insurance then the question can properly be raised as to whether there was compliance with 4(2)(c). 5 So, for a solicitor to comply with the requirements of regulation 4(2)(c) he/she will usually need to inspect the relevant insurance policies themselves. CFA S POST HOLLINS AND RUSSELL 6 In Hollins v Russell [2003] EWCA Civ 718 the Court of Appeal gave strong indications that the courts should not encourage satellite litigation about technical breaches of the CFA regulations. Their Lordships said at paragraph 221: Costs judges should ask themselves the following question: Has the particular departure from a regulation or requirement in section 58, either on its own or in conjunction with any such departure in this case, had a materially adverse effect upon the protection afforded to the client or upon the proper administration of justice? 7 This has had the effect of disposing of a lot of challenges to breaches of the regulations. However some challenges are still successful: (i) Culshaw v Goodliffe: where there was a breach of regulation 4(2)(c) and the claimant was worse off (namely her part 36 position) under the CFA than she would have been under her BTE policy, this was a material 3

4 breach under the Hollins v Russell test, and so the CFA was found to be unenforceable. (ii) Spencer v Gordon Wood LTL in which the court found that where a CFA did not set out how much of the uplift related to the postponement of the solicitor receiving his legal fees, it did not comply with the regulations and so was unenforceable. This was on the basis that this part of the uplift is not recoverable from the defendant, and so failure to inform the claimant of this liability has an adverse effect on the claimant. LEVEL OF UPLIFT 8 The regime for uplifts in road traffic cases is of course now subject to the Civil Procedure (Amendment) Rules 2004 schedule 1 for RTA cases that occurred after 6 October A solicitor can recover 100% uplift if the case fights to trial, and a 12.5% uplift if it settles prior to trial or prior to issuing proceedings. 10 For accidents that occurred prior to 6 October 2003 the guidance as set out in the case law should still apply. Thus the test for determining whether the uplift is reasonable, is what the reasonable solicitor perceived the risks of the claim to be at the time that the CFA was entered into. 11 If the case has fought to trial on liability there is very little chance of persuading any court that the claimant is not entitled to a 100% uplift. However, where a case has settled the defendant will often be successful in negotiating the claimant down on the claimed uplift. 12 Some examples of uplifts that have been awarded by the courts include: 4

5 (i) (ii) Callery v Gray [2001] EWCA Civ 1246: 20% is reasonable in a low value RTA that settles in the protocol period. Halloran v Delaney [2002] EWCA Civ 1258: 5% is reasonable for a road traffic accident that settles pre-issue. This should be the ordinary rule unless the judge can be persuaded that a higher uplift should apply. This was clarified in the case of Claims Direct Test Cases [2003] EWCA Civ 136 as applying only to claims in which the prospects of success were virtually 100%. 13 Callery v Gray advocated the use of staged success fees in a claim that is unlikely to settle within the protocol period. Thus the solicitor should agree a fairly high success fee with provision for a rebate if it settles within the protocol period. 14 This has been interpreted by HHJ Barnett in the case of Cheshire County Council v Lea (unreported ) as a signal to solicitors that they should be reducing the success fee each time the risk profile of the case changes. He advocated an approach whereby the uplift starts at 100%, once liability has been admitted this reduces to 25%, and on the detailed assessment proceedings, this is reduced again to 5%. 15 Note however that this approach has come in for some criticism, namely by HHJ Stuart in Ungli v Liverpool County Council Unreported 14 June It was his very firm view that if the agreement between the client and the solicitor does not provide for a staged success fee at the outset (ie as a term of the CFA) then it is not open to the court to impose a staged success fee as a retrospective measure. He distinguished the case of Lea on the basis that it was a case which settled pre-issue. 5

6 16 If the matter settles pre-issue, and the only proceedings that are issued are costs only proceedings, it is unlikely that an uplift of more than 5% will be awarded on the costs of the costs only proceedings Halloran v Delaney. However, if the proceedings have been issued, the uplift on the costs part of the proceedings is likely to be the same as the uplift for the substantive proceedings. CFA LITE 17 On 2 nd June 2003, a trio of regulations came into force, the effect of which will is to allow solicitors to enter into agreements with their clients that breach the indemnity principle enabling the solicitor to agree with the client that the client should be liable to pay fees and expenses only to the extent that sums are recovered in respect of the proceedings whether by way of costs or otherwise. 18 The regulations start with the Access to Justice Act 1999 (Commencement No. 10) Order 2003 which brings into force on 2 nd June 2003 Section 31 of that Act. That Section adds to Section 51 Supreme Court Act 1981 the power to make rules for securing that the amount awarded to a party in respect of the costs to be paid by him to such representatives is not limited to what would have been payable by him to them if he had not been awarded costs. 19 The way is, therefore, paved for rules to allow the wholesale abrogation of the indemnity principle. On this occasion, however, such abrogation is limited to conditional fee agreements. This limited abrogation is effected by the Civil Procedure (Amendment No. 2) Rules. That Rule amends Rule 43.2 CPR by adding a third and fourth paragraph. The third paragraph provides that where advocacy or litigation services are provided to a client under a conditional fee agreement, costs are recoverable under parts 44 to 48 notwithstanding that the client is liable to pay his legal representative s fees and expenses only to the 6

7 extent that sums are recovered in respect of the litigation, whether by way of costs or otherwise. The new paragraph 4 makes it clear that the reference to a conditional fee agreement is to one that satisfies all the conditions applicable to it by virtue of Section 58 of the Courts and Legal Services Act The third part of the jigsaw puzzle comprises the Conditional Fee Agreements (Miscellaneous Amendments) Regulations That too came into force on 2 nd June One of the complexities arising out of the new regulations is the effect of making of costs recoverable notwithstanding that the client is liable to pay his legal representative s fees and expenses only to the extent that sums are recovered in respect of the litigation, whether by way of costs or otherwise. The indemnity principle prevents a solicitor from recovering from a losing party unless and to the extent that the client is liable to pay. The case of Customs and Excise v Vaz (1995) STC14 made it clear that if the agreement between the client and solicitor is that the client is under no obligation to pay save and to the extent that the solicitor obtains costs from the other side, then, in fact, the client is under no obligation to pay at all and, pursuant to the indemnity principle, the solicitor cannot recover from the losing party. 22 There is no breach of the principle if the client and solicitor agree that the client will only pay his solicitor if and to the extent that damages are recovered. Such an agreement would, of course, be a conditional fee agreement and to be enforceable would have to comply with the regulations and if damages were of a modest amount, then the amount of costs recoverable could be subject to a top limit, namely the amount of damages. 7

8 23 The reason for that distinction is that in a Vaz situation, when the solicitor seeks costs, then if the court asks the question, is your client liable to pay?, the answer would be not unless I am awarded any costs, in other words not at the moment. In those circumstances there is, as was pointed out in the Vaz case no basis for an award of cost because there is no present liability to pay costs and costs are only awarded on an indemnity basis. 24 The same would not be true in the case where the client had agreed to pay costs to the extent of damages recovered only, because by the time the solicitor seeks an award of costs, the court will have made an award of damages and the condition of liability of the client to pay costs will have arisen. 25 The new Regulation 3A appears to apply to both situations. What it does not do is apply to a situation where even if no sums are recovered, the client may be liable, except in the circumstances set out in Regulation 3A(5). This aspect of the new Regulation is, perhaps, designed to cover the situation where a Part 36 payment into court has been made and the claimant does not beat that payment in. In those circumstances, if the solicitor has agreed to accept only such costs as are recovered from the losing party as costs, then the claimant will not be liable to any extent in relation to the solicitor s costs after the payment in. Many versions of conditional fee agreements, however, provide for at least partial liability on the part of the client in such circumstances. The usual form is that the client is liable to pay both base and success fees if the payment in was not accepted contrary to advice. Where the payment in is not accepted in accordance with advice, then the option is either base fees only or no fees. Clearly, wherever any fees are payable in such circumstances, then the fees could be payable out of damages and it would be possible to word the agreement so that the fees were only payable out of inter partes costs and damages and to the extent of those inter partes damages. 8

9 26 It is possible, however, that an agreement could be drafted to come within Regulation 3A(1) so that the client is liable to pay fees to the extent that costs and other sums are recovered in respect of the relevant proceedings. That would permit the solicitor to recover from costs and damages not only costs incurred after a successful defendant s payment into court, but costs incurred on unsuccessful interlocutory applications and any short fall between solicitor and own client costs and costs assessed as between party and party. So long as there was no chance (except as set out at Regulation 3A(5)) that the client would have to dip into his own pocket to pay, then such an agreement would appear to come within the new Regulation 3A and be subject to the less onerous Regulations provided therein. 27 The regulations are all set to be overhauled at some time during the beginning of next year. The idea is to simplify the requirements in one set of regulations setting out the minimum statutory framework, focusing client care and contractual responsibilities in the Law Society s Professional Conduct Rules and client care and costs information code. COSTS UPDATE 28 Practitioners should be aware of the following issues: (i) (ii) (iii) Cost estimates Cost capping Costs and conduct. Costs Estimates 29 The parties must file cost estimates in the allocation questionnaire and the listing questionnaire. They can be a useful tool for the paying party to attack the 9

10 receiving party s costs. CPR 26PD2 sets out what a cost estimate must contain. It does not need to reveal the uplift. 30 The leading case in this area is Leigh v Michelin Tyre [2003] EWCA Civ This provides that where there is a discrepancy between the costs estimates provided and the costs claimed, an explanation must be provided. If no adequate explanation is given, then the court may come to the view that the costs claimed are unreasonable. Most importantly however, the court may take account of the estimate if the paying party can show that they have relied on the estimate in some way, or where the court would have given different case management directions in reliance on the estimate. 31 A defendant can in theory persuade a court that it has relied on a costs estimate given at allocation stage. Examples of this could include: (i) Making a part offer that turns out to be too low, based on the costs estimate. This would have to be made prior to the claimant serving a bill of costs on the defendant. (ii) Making a global offer to settle damages and costs based on the costs estimate. (iii) Showing that they continued to fight the case on liability as they considered that there exposure to costs was minimal. How amenable to these kinds of arguments the court will be in practice remains to be seen. 32 The case of Leigh was considered in Burns & Others v Novartis Grimsby and Another Unreported There the court held that the claimants were not limited to recovering the amount of costs estimated by them in their allocation questionnaire where, subsequent to the filing of the questionnaire, their case 10

11 had changed dramatically and turned into a very difficult and complex one which proceeded to a fully contested trial. Costs Capping 33 In some cases, defendants are making applications to the court asking for an order that the claimant s costs are capped. Examples of cases in which such an application has been made are: (i) (ii) France v McVeigh Unreported : this was a fast track RTA with a personal injury element. The claimant estimated the base costs on the allocation questionnaire at 9,000. The claim was being funded by a CFA. The defendant made an application to cap the costs. The court held that there was no reason to place a cap on the costs unless this was required to stop the costs escalating. The court came to the view that making applications of this sort, when the costs would be subject to some kind of assessment at the conclusion of proceedings, simply added another layer of costs litigation to routine cases. Smart v East Cheshire NHS Trust [2003] EWHC 2806 (QB): This was a high value clinical negligence claim. The court gave some guidance as to when it would be appropriate to make a costs capping order. This was where (i) there was a real and substantial risk that without such an order costs would be disproportionately or unreasonably incurred; (ii) the risk could not be managed by conventional case management and a detailed assessment of costs after trial; and (iii) it was just to make such an order. It was very unlikely that it would be appropriate for the court to adopt a practice of capping costs in the majority of clinical negligence cases. The court also gave guidance as to the way in which such applications would be determined: (a) when an application was made it had to be supported by evidence showing a prime facie case that the above conditions could 11

12 be satisfied; (b) the allocation and listing questionnaires would have attached estimates of the likely overall costs which should give a good guide; (c) the court should be able to deal with an application at a comparatively short hearing; and (d) the benefit of the doubt in respect of the reasonableness of prospective costs should be resolved in favour of the party being capped. The order should also include a provision for uplift in certain circumstances (iii) Musa King v Telegraph Group Ltd [2004] EWCA (Civ) 613: this is a case in which the Court of Appeal grappled with the perceived unfairness of a defendant facing an enormous costs bill (some 400,000) for a defamation claim, in which damages were valued at 15,000. The claimant had no ATE, being unable to afford the premium, thus the defendant would not have recovered any costs even if they had won. The court gave some guidance as to how to cap costs in a CFA funded claim. The cap should prescribe a total amount or recoverable costs which would include any additional liabilities. The Court of Appeal considered that a costs capping order should be the first weapon that a court should have recourse to where an over-heavy estimate of costs in the allocation questionnaire has been provided. 34 The courts do seem to be moving towards costs capping as a way of controlling costs. However the cost of applying for such an order in low value claims is likely to be prohibitive. Conduct 35 If the receiving party wishes to raise an issue relating to the conduct of the receiving party on a detailed assessment hearing the case of Aaron v Shelton [2004] EWHC 1162 (QB) is now authority for the proposition that the defendant must have raised these issues before the judge making the costs order where 12

13 appropriate. Failure to do so, coupled with an attempt to take the point at the detailed assessment stage is an abuse of process. Note that this extends to a paying party who is drawing up a consent order when settling a claim. Katie Scott 39 Essex Street London WC2R 3AT 15 October

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