The time of changes

I have always been a fan of autumn. The season of changes, it is pleasingly full of falling leaves, muddy boots, and crumpets with bramble jelly by the fire.

In keeping with the autumnal zeitgeist last month I moved rooms in chambers, vacating the room that I have had for 18 years and moving to new quarters on the first floor.

I also sadly said farewell to a chair that has been in my room for the same period of time. Never sat in by me, it has been a useful repository for books, umbrellas, papers and sundry pupils for nearly 2 decades. Here is a picture of it:


It was one of a matching pair, but its twin vanished long ago, and only recently did I become aware of where the missing chair ended up:


Yes, my chair was stolen, and it seems ended up as a prop in the torture scene in Casino Royale.

I was in turn tempted to keep the remaining chair, in case it came in useful in the future eg: to encourage defaulting solicitors to pay the fees that they owe me.

But life is too short for such indulgences, the chair has been thrown on the scrap heap and so will some certainties in the world of costs, as the pace of change is now accelerating as we move towards 2017.

The three big issues that I identify for the next year, are the imminent consultation on fixed fees for clinicial negligence cases likely to be limited to those cases with a value of up to £25,000, the impending Court of Appeal case(s) on the proportionality test and the introduction of the new Bill of Costs.

I have selected these three reforms because each of them has the potential to be systemic in their own right and in the wider consequences they have for the law and practice of costs.

Fixed costs in clinical negligence cases will undoubtedly affect the economics of practice in that area, but will also act as a template for further reform, both in terms of the upward expansion of fixed costs in clinical negligence, but also in other areas which at the moment have pleaded special privilege in terms of their complexity or the need for a bespoke award of standard basis costs.

The proportionality appeal(s) will crystallise the correct approach to proportionality for the lower courts, and determine the volume of costs litigation in the next few years: if the scope for a reduction is broad and sweeping, far more costs disputes will be litigated than at present. Conversely, if the scope is small, then the retention of the principle of proportionality at all, is thrown into question, because it can legitimately be asked what does it add to the criterion of reasonableness?

The digital bill has been slow in its evolution, greeted with a lack of enthusiasm by the profession, but has the potential to greatly erode one of the profit centres of the costs lawyers profession, the drawing of bills. Its arrival fits with the move to digitisation.

It would require enormous expenditure to implement the firm wide systems which must underpin it and its potential complexity, could in turn affect the volume of costs litigation as parties grapple with its introduction.

Interesting times ahead.


“Do you expect me to talk, Le Chiffre?”

“No Mr Bond, I expect you to cry.”

Late acceptance of part 36 offers and indemnity costs

Costs litigation like no other area of practice is an exercise in bare knuckle savagery. Points are fought with the utmost ferocity, fire and vigour until finally determined and then after a momentary pause a new trend in satellite litigation will arise.

One such point doing the rounds at the moment is the costs position after a defendant in a personal injury claim accepts out of time a part 36 offer made some while earlier by a claimant. There are a growing number of applications made by claimants for orders for indemnity costs against defendants grounded on the mere fact of late acceptance.

The trend is traceable to the decision of the Court of Appeal in the case of Broadhurst v Tan [2016] EWCA Civ 94 and the curious case of Sutherland v Khan (County Court at Kingston upon Hull 21st April 2016) where District Judge Besford made an indemnity costs order against a defendant, for late acceptance of a part 36 offer.

The cases are now starting to go to appeal. Yesterday, in the case of Whiting v Carillionamey (Housing Prime) Limited (Claim No B80YM364) I argued the point on appeal before His Honour Judge Hughes QC in the County Court at Winchester, where he overturned a decision of a Deputy District Judge in the County Court at Portsmouth, to award indemnity costs against a defendant.

The facts of the case may be briefly stated. This was not a fixed costs case, with costs prescribed by part 45 CPR. The issue was whether the costs payable should be standard or indemnity basis costs.

On 6th September 2012, the claimant sustained an accident, when he fell over due to missing concrete slabs. He suffered soft tissue injuries to his left knee, ankle and hand. He took 4 weeks off work. On 27th November the claimant instructed his solicitors through a Conditional Fee Agreement. He also incepted an ATE policy. On 20th February 2013 a Letter of Claim was sent. On 23rd June 2015 a Part 36 offer was sent by the claimant to the defendant. It offered to settle the claim for £3000.

On 8th September 2015 proceedings were issued. On 14th January 2016 directions were made by the court. A trial window was set for 6th June to 24th June 2016. On 18th May 2016 the defendant wrote a letter and accepted the claimant’s Part 36 offer of 23rd June 2015, some 10 months late.

The claimant intimated that he wanted an award of indemnity costs from 15th July 2015. This was refused by the defendant.

The claimant refused to accept the claim was stayed and/or that an application with evidence in support needed to be put before the court to obtain an award of indemnity costs. The case remained in the list.

The claimant served a trial bundle, but no application or witness statement seeking indemnity costs. There was accordingly, no other material before the court than these documents.

On 7th June 2016 Deputy District Judge Haig-Haddow after submissions, ordered that the defendant pay the claimant’s costs, including the costs of the hearing, assessed on a standard basis up to 14th July 2015 and thereafter on an indemnity basis, such costs to be assessed by way of detailed assessment.

The difficulty with this decision was that there is long standing authority, that mere late acceptance of a part 36 offer, is not a basis for making an award of indemnity costs.

His Honour Judge Hughes QC accepted that he was bound by authority in the Court of Appeal and High Court, as was the Deputy District Judge and allowed the appeal.

The leading case on when it is appropriate to award indemnity costs remains that of Excelsior Industrial and Commercial Holdings v Salisbury Hammer Aspden and Johnson [2002] EWCA Civ 879 where Lord Woolf made a number of observations.

First he contrasted the then rules 36.20 and 36.21, the predecessors to the current rules 36.13 and 36.17 noted above:

17. Part 36.20 deals with the situation which we have here. It provides:

“(1) This rule applies where at trial a claimant —

(a) fails to better a Part 36 payment; or (b) fails to obtain a judgment which is more advantageous than a defendant’s Part 36 offer.

(2) Unless it considers it unjust to do so, the court will order the claimant to pay any costs incurred by the defendant after the latest date on which the payment or offer could have been accepted without needing the permission of the court.”

18. The language of 36.20 has to be contrasted with the language of Part 36.21. Part 36.21 deals with the situation where a claimant has made a Part 36 offer. The significance of 36.21 is that, unlike 36.20, it refers specifically to the court being entitled to order costs on the indemnity basis from the latest date when the defendant could have accepted the offer which had been made. Equally, it refers to interest on a higher rate than normal in the case of situations where it applies. When Part 36.20 is compared with 36.21, light is thrown on the appropriate approach to the application of Part 36.20.

19. The clear inference from the absence of any reference to an indemnity basis in 36.20 is that, in normal circumstances, an order for costs which the court is required under that Part to make, unless it considers it unjust to do so, is an order for costs on the standard basis. That means that if the court is going to make an order for indemnity costs, as it can in a case where Part 36.20 applies, it should do so on the assumption that there must be some circumstance which justifies such an order being made. If I may here adopt the way it was put in argument by Waller LJ, there must be some conduct or (I add) some circumstance which takes the case out of the norm. Mr Davidson’s argument on this part of the appeal is that there was here not found by the judge any such circumstance.

(emphasis added)

Secondly Lord Woolf went on to explain why, mere non acceptance of a part 36 payment or offer, without more did not justify an award of indemnity costs:

30. In Kiam v MGN Ltd (No 2) [2002] 2 All ER 242, this court was concerned about a possible assumption that if an offer of payment into court was not accepted by a claimant, then automatically the claimant would be liable for costs on an indemnity basis as opposed to a standard basis. This court made it clear that such an approach is wrong. In the course of his judgment, with which the other members of the court agreed, Simon Brown LJ in paragraphs12 and 13 said as follows:

“12. I for my part, understand the court there to have been deciding no more than that conduct, albeit falling short of misconduct deserving of moral condemnation, can be so unreasonable as to justify an order for indemnity costs. With that I respectfully agree. To my mind, however, such conduct would need to be unreasonable to a high degree; unreasonable in this context certainly does not mean merely wrong or misguided in hindsight. An indemnity costs order made under Pt 44 (unlike one made under Pt 36) does, I think, carry at least some stigma. It is of its nature penal rather than exhortatory. The indemnity costs order made on the principal appeal in McPhilemy’s case was certainly of that character. We held ([2001] 4 All ER 361 at [29]) that the appeal involved an abuse of process on the footing that

‘to have permitted the defendants to argue their case on perversity must inevitably have brought the administration of justice into disrepute among right-thinking people’.

31. It follows from all this that in my judgment it will be a rare case indeed where the refusal of a settlement offer will attract under Pt 44 not merely an adverse order for costs, but an order on an indemnity rather than standard basis. Take this very case. No encouragement in the way of an expectation of indemnity costs was required for him to make his offer to accept £75,000; its object was to reduce the damages to that level. Where, as here, one member of the court considered the jury’s award ‘wholly excessive’, and thought that £60,000 would have been the highest sustainable award, it seems to me quite impossible to regard the appellant’s refusal to accept the £75,000 offer as unreasonable, let alone unreasonable to so pronounced a degree as to mention an award of indemnity costs. It is very important that the Reid Minty case should not be understood and applied for all the world as if under the CPR it is now generally appropriate to condemn in indemnity costs those who decline reasonable settlement offers.”

32. In the context of that case I see that those paragraphs set out the need for there to be something more than merely a non-acceptance of a payment into court, or an offer of payment, by a defendant before it is appropriate to make an indemnity order for costs. Insofar as that is the intent of those paragraphs, I have no difficulty with them. However, I would point out the obvious fact that the circumstances with which the courts may be concerned where there is a payment into court may vary considerably. An indemnity order may be justified not only because of the conduct of the parties, but also because of other particular circumstances of the litigation. I give as an example a situation where a party is involved in proceedings as a test case although, so far as that party is concerned, he has no other interest than the issue that arises in that case, but is drawn into expensive litigation. If he is successful, a court may well say that an indemnity order was appropriate, although it could not be suggested that anyone’s conduct in the case had been unreasonable. Equally there may be situations where the nature of the litigation means that the parties could not be expected to conduct the litigation in a proportionate manner. Again the conduct would not be unreasonable and it seems to me that the court would be entitled to take into account that sort of situation in deciding that an indemnity order was appropriate.

Similar considerations drove the decision in the case of  Fitzpatrick Contractors Ltd v Tyco Fire and Integrated Solutions [2009] EWHC 274: there has to be something more than mere late acceptance, for an order for indemnity costs to be appropriate.

The Deputy District Judge had no material before him, to suggest there was anything other than late acceptance: no material at all to suggest any misconduct on the part of the defendant, still less misconduct which justified an award of indemnity costs. His decision was contrary to principle and flawed by a misdirection of law.

Accordingly the appeal was allowed

Litigation Funding

The arrival of October means the “coalbiter” months have begun.  From now until just before Christmas, the days will be growing shorter, and the long nights will give plenty of opportunity to read and write on topics of interest when my children have gone to bed and to update this blog accordingly.

For a more detailed exposition of the term “coalbiting” and the origins of the modern usage of the word the following link may be of interest:

A copy of my most recent article in the journal Litigation Funding can be found here: cause-for-complaint and my last article in that publication this year will be on litigation funding in the context of international arbitrations.

In the meantime I note that the recent case I appeared in, of Essar Oilfields Services Limited v Norscot Rig Mangement PVT Limited [2016] EWHC 2361 (Comm)  has attracted a fair bit of interest on the web and some of the links to the more interesting articles can be found below:


St Michael and All Angels

Today is the Feast of St Michael and All Angels, which has given its name to Michaelmas term, always the busiest of the legal year, in the run up to Christmas.

To mark the start of the new legal year, I have decided to offer two separate seminars to my professional clients, each of 90 minutes in duration.

“Retainers, costs and clients” looks at the common issues, which arise in solicitor-own client costs disputes, and considers what can be done to contain the fallout and ensure that a solicitors firm receives the fees that it is entitled to.

“Costs for commercial lawyers” looks at the key issues which can arise in commercial cases, including funding, security for costs, budgeting, settlement including part 36 and the recovery of costs in inter partes detailed assessments.

If your firm would be interested in my delivery of either of these seminars, then please feel free to get in touch at

Money and misery

This post first appeared as an article written for the Family Bar in November 2015.

A fast growing area of practice for the Family Bar, is the provision of advice and representation for unmarried couples or others who find themselves engaged in property disputes under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). As such proceedings, despite wishful thinking in some quarters are civil proceedings tried in the County Court or Chancery Division, the normal principles of civil costs apply to them. The purpose of this article is to consider some of the issues such cases throw up.

It is the exception, rather than the rule that an award of inter partes costs is made in family proceedings, such as ancillary relief. In those proceedings, the costs are paid out of the pot of assets that the divorcing couple have. In civil cases, a wholly different ethos applies, namely that the loser pays the winner’s costs and stands his or her own costs. In turn, the ways of funding a client’s costs can be more adventurous than the typical privately paid retainer, or increasingly these days, Public Access contract made directly with a lay client in family proceedings.

As TOLATA proceedings are civil proceedings, the statutory prohibition against the use of contingency fee arrangements (damages based agreements) or conditional fee agreements, the two major types of no win, no fee agreements do not apply. It is perfectly lawful and proper for counsel, to agree to represent a client on the basis of a discounted conditional fee agreement, whereby the client agrees to pay eg £250 per hour if the case is won, or say, £150 per hour if the case is lost.

Although many family lawyers would dismiss such arrangements out of hand, the Chancery Bar is quite adept at working on conditional fee arrangements and their website provides some useful precedent agreements: though it would be a brave soul who acts under a pure damages based agreement, given that there are real problems with drafting an enforceable damages based agreement, or recovering any fees from the client should they choose to end the agreement, before a case is lost or won.  It would be an even braver soul, who decided to act for a client in a Public Access matter on any type of no win, no fee arrangement: given the prohibitions on handling client money and the practicalities of enforcing an award of costs, such agreements can only sensibly be made where there is a solicitor at the other end of it.

All barristers in civil proceedings, these days have to be costs experts: and given a particular feature of these cases, is the costs risk, if a case is lost or costs are not recovered in full, it pays to be aware of what the clients arrangements are with the solicitor, and whether the client has the benefit of BTE (before the event) legal expenses insurance, or has purchase ATE (after the event) legal expenses insurance, and what the limit of that cover is. If a client is horribly exposed to costs risks, a more cautionary approach may need to be taken to the case.

One of the key reforms that the implementation of LASPO 2012 and the package known as the Jackson Reforms, was the introduction of a newly formulated principle of proportionality. What this principle will mean in practice is not yet clear: but on its wording, it means that costs can be reasonably incurred, they can be necessarily incurred to bring a case to its conclusion, but notwithstanding reasonableness and necessity, they can still be disproportionate, and if so, will be disallowed by the court. This principle affects both budgeting and the assessment of costs.

Since 1st April 2013, civil claims issued under part 7 of the Civil Procedure Rules 1998, and most TOLATA cases will be issued under part 7 as they will involve fiercely disputed facts, will be subject to a process of costs budgeting. In advance of the first costs and case management conference, the parties must file and serve the horrendous Precedent H, a form, which sets out the budget for the proceedings.

These forms will then be used by the court to manage the costs of the proceedings, in effect serving as a form of “costs capping lite”. It is essential to consult with an instructing solicitor, prior to the form being completed, as to what figures for counsel’s fees will be included in the precedent H: because if those figures prove to be unrealistically low, then any excess fees may not be recoverable from the losing side.

It has been wisely observed, that there are no winners in family proceedings. At the conclusion of a civil case, there will be a winner and there will be a loser, someone whose claim has succeeded if only in part, and someone who has lost. It is at this point, that part 44 of the Civil Procedure Rules 1998 comes into play.

The court has a structured discretion as to how it will deal with the costs of the proceedings. The starting point is as set out in rule 44.2(2): the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party, though the court may make a different order.

Pursuant to rule 44.2(4) the court will have regard to all the circumstances, including the conduct of the parties, degrees of partial success and most particularly any admissible offer to settle, of which the most important variety of offer, will be a part 36 offer.

Costs can be awarded on the standard or indemnity basis: the standard basis means such costs are subject to the criteria of reasonableness and proportionality and the burden is on the receiving party to justify those costs: on the indemnity basis, the only criteria is whether the costs are reasonable and the burden of proof lies on the paying party to show they are unreasonable.

Each and every case, should have at least two part 36 offers, one made by the defendant and one made by the claimant, which reflects their realistic case, rather than their best case, or the open case alleged on the pleadings. I would go so far as to say, that a lawyer who does not advise on an appropriate part 36 in good time before a trial, is skirting with professional negligence and failure to advise a client on the risks posed by an opponent’s part 36 offer, certainly is prima facie negligent.

The effect of a well pitched part 36 offer can be devastating in terms of costs consequences, and is of a magnitude of effectiveness, far greater than the familiar Calderbank offer. Part 36 was comprehensively revised and updated in April 2015.

Part 36 has nothing to do with principles of contract law: it is its own self contained procedural code. Part 36 offers can be made in respect of any issue in proceedings: and at any time, before proceedings are started, or in respect of an appeal.

Should a claimant succeed in beating her own part 36 offer at trial, she will receive indemnity costs from a point in time 21 days after the offer was made, interest on those costs, part 36 enhanced interest and an additional amount: a penalty figure of 10% of the damages awarded.

For a defendant, making a part 36 offer, may be the only practical way, they can protect themselves at trial. Should a claimant fail to beat a defendant’s part 36 offer, then notwithstanding a degree of success at trial, she will be ordered to pay the defendant’s costs, from a point in time 21 days after the offer was made.

When drafting part 36 offers, careful consideration must be given to the form, as if a part 36 offer does not comply with the requirements as to its form and content prescribed by rule 36.5, it will not be an effective part 36 offer, and will take effect, if it does at all, as a mere offer to settle.

Acceptance of a part 36 offer made after proceedings have commenced, will serve to automatically stay those proceedings and create a deemed costs order in favour of the party accepting the offer.

It is worth reiterating again, that a claimant who beats her own part 36 offer at trial, will be awarded indemnity costs, and the principle of proportionality will not apply: when costs come to be assessed this can be of the utmost importance.

If a party’s claim for costs is less than £75,000 then in the first instance these will be assessed on paper, by the District Judge. If more, then by a traditional detailed assessment. In either case, in order to maximise recovery of costs, it is a good rule of thumb that if counsel’s fees are more than £5000 for counsel to write a note for the court’s benefit setting out what work was done, and why in order to flesh out the fee notes most clerks bang out: these may in their own way, like Japanese brush paintings, be beautiful in their sparse simplicity, but if lacking in detail might not be regarded as helpful by the District Judge.

Quis custodiet ipsos custodes?

Many of my colleagues at the Bar believe that I spend my days with an abacus, counting out 6 minute units of time, and the minutes of my own life in coffee spoons.

Far from it. As I have frequently observed, the law and practice of costs and litigation funding throws up more problems of fraud, negligence and professional regulation than any other sphere. Part of my work involves the law relating to the regulation of claims management companies, some of whom burn “white hot” in terms of the acceptability of their practices.

One case that I dealt with some years ago concerned a man who set up as an unregulated claims management company, systematically targeting disabled people, who often had very sound claims for disability discrimination and exploiting their claims for profit.

Earlier this year, long after the hearing I dealt with at Central London County Court in 2012, he was sent to prison.

The facts of the case are set out here:

The case illustrated to me two particular points.

The first was the comprehensive net of regulatory provisions which forbade such activity.

First there are the provisions which preclude people from pretending to be solicitors. Section 20 of the Solicitors Act 1974 (as amended by the Legal Services Act 2007 on 8th March 2008) states that no unqualified person may act as a Solicitor and any person who contravenes this prohibition is guilty of an offence and liable on conviction on indictment to imprisonment for a term of up to 2 years or to a fine or both.

Section 21 of the Solicitors Act 1974 catches an unqualified person who wilfully pretends to be or takes or uses any name title additional description implying that he is qualified or recognised by law as qualified to act as a solicitor and provides that he shall be guilty of an offence and liable on summary conviction to a fine.

Secondly, there are the provisions which provide criminal sanctions for unregulated persons, carrying out litigation or exercising rights of audience. Section 12 of the Legal Services Act 2007 establishes a number of reserved legal activities including inter alia the exercise of a right of audience and the conduct of litigation and makes them subject to statutory regulation. Section 13 provides that the question as to whether a person is entitled to carry on an activity which is a reserved legal activity is to be determined solely in accordance with the provisions of this Act and a person may only carry on such an activity if the person is authorised or exempt within the statutory scheme.

Section 14 of the Legal Services Act 2007 establishes an offence for a person to carry on an activity which is a reserved legal activity unless that person is entitled to carry on the activity such offence being punishable on summary conviction to a term of imprisonment of up to 12 months or a fine or conviction on indictment to a term not exceeding 2 years or a fine or both.

Section 17 of the Legal Services Act 2007 creates a further offence for a person wilfully to pretend to be entitled to carry on any activity which is a reserved legal activity when that person is not so entitled or with the intention of implying falsely that that person is so entitled to take or use any name title or description.

Pursuant to Section 18 and 19 of the Legal Services Act 2007 the Act further defines who are authorised persons and who are exempt persons.

Schedule 2 of the Legal Services Act 2007 the conduct of litigation is defined to mean the issuing of proceedings before any Court in England and Wales, the commencement prosecution and defence of such proceedings and the performance of any ancillary functions in relation to such proceedings such as entering appearances to actions.

Thirdly, any fee arrangements are likely to be void and unenforceable, in this context. Fee arrangements provided by non-qualified persons, unlawfully conducting litigation on a “no win-no fee” basis, are usually unlawful contingency fee arrangements and void at common law and contrary to and prohibited by the statutory scheme for Conditional Fee Agreements set out in the Courts and Legal Services Act 1990.

Finally, there are the provisions which apply to the provisions of claims management services. Perhaps most significantly, by Section 4 of the Compensation Act 2006 a person is prohibited from providing regulated claims management services unless he is authorised or exempt or a waiver has been granted or he is an individual acting otherwise than in the course of a business.

Pursuant to Section 7 of the Compensation Act 2006 a person commits an offence if he contravenes Section 4 and is liable on conviction on indictment to imprisonment for a term not exceeding 2 years or to a fine or to both or on summary conviction for a term of imprisonment not exceeding 12 months or to a fine not exceeding the statutory maximum or to both.

The Compensation (Regulated Claims Management Services) Order 2006 Regulation 4 provides that services of the kind specified are prescribed in relation to the making of a claim of a kind described in paragraph 3 or in relation to a cause of action that may give rise to such a claim.

Under Regulation 4(3) the kinds of claim include claims for personal injuries as defined by the Civil Procedure Rules 1998 which includes any claim which may give rise to a claim for inter alia a mental illness such as depression or “damages for a mental impairment” which would include an award for injury to feelings or in respect of claims in relation to employment including discrimination claims.

The second point that struck me about the case was that all these measures, providing consumer protection to the public were effectively worthless, if, there was no enforcement of them by the public authorities: leaving in this case a vulnerable section of the public exposed for many years to the actions of a criminal and without access to justice.

Non party costs applications against credit hire companies

An important issue in credit hire litigation if a claim fails, is the extent to which a successful defendant, can either enforce its claim for costs against a claimant, or seek an order for non party costs against the credit hire company.

An interesting judgment was handed down earlier this year, on that issue. Running to 46 pages, the District Judge examined the substantive law, the procedural rules, the authorities and all the arguments with great care before concluding that it would be inappropriate to make a non party costs Order.

A copy of the judgment can be found here: Nathanmana-v-Uk Insurance Judgment

The third way

When a client receives a bill for a solicitor’s work, it may provoke a gamut of emotions from gratitude to anger, and anger normally arises from a belief that the client has been overcharged, or is being asked to pay for work of poor quality or work that has been undertaken negligently, in turn causing the client to suffer further financial loss.

In such circumstances a client’s options should they wish to take matters further are threefold. The first can be an action for damages for professional negligence, the second can be an application for a solicitor-client detailed assessment in the SCCO or a District Registry, and the third can be a complaint, initially to the solicitor, but then almost inexorably to the Legal Ombudsman.

The question of which of these routes is to be pursued, will normally follow from correctly identifying what the subject matter of the complaint is, and what remedy will be sought. However, in a post LASPO 2012 world, where success fees are irrecoverable as is the cost of ATE insurance, if it can be obtained at all, the ability of a client to fund further legal proceedings against his former advisors is likely to be severely curtailed, possibly rendering professional negligence proceedings or a solicitor-client detailed assessment unviable.

The Legal Ombudsman route becomes of necessity, a client’s only real chance of redress, because in making a complaint to the Legal Ombudsman, a client does not expose themselves to the prospect of an adverse costs Order, noting that particularly in the context of a solicitor-client detailed assessment, the 20% rule loads the dice against a client recovering the costs of those proceedings. In addition, because the process is inquisitorial, much of the “heavy lifting” in terms of determining the complaint, will be undertaken by the Legal Ombudsman, giving an unrepresented individual a greater prospect of success.

The Legal Ombudsman’s role has been expanded in recent years, to include complaints about claims management companies as well as solicitors and other lawyers. A significant proportion of complaints against solicitors are complaints about fees, and in 2014 the Legal Ombudsman published a report “Complaints in Focus: No win, no fee agreements”, which identified an increasing concern with conditional fee agreements, including particular problems with the transfer of risk of unrecovered costs, lack of clarity in terms and conditions, a lack of explanation of complex terms and conditions, aggressive marketing and a lack of robust vetting.

In respect of claims management companies, the report “Complaints in focus: Claims management companies” identified that 40% of complaints against claims management companies are about fees, including unjustified fees, the failure to refund upfront fees and contractual disputes about fees.

It follows that when a dispute about fees arises and a complaint is made, a solicitor will need to know with clarlity, the basis upon which the Legal Ombudsman will reach a decision, and assuming the worst, how that decision might be capable of challenge.

The Legal Ombudsman is the ombudsman scheme established by the Office for Legal Complaints under the auspices of the Legal Services Act 2007. The details of the scheme are contained within the Scheme Rules, the latest version of which is January 2015. The scheme closely parallels that which applies to financial services albeit that the source of its jurisdiction and its context is distinct. It is open principally to consumers of legal services who are individuals, or small businesses at micro-enterprise level or charities or clubs with an income of less than £1 million per annum, who have a right of complaint.

The Legal Ombudsman will usually require that a complaint is made first to the solicitor’s firm for redress under their internal complaints procedure, but if that is not addressed within 8 weeks or inhouse resolution is not possible, or there are other exceptional reasons, a complainant can ask the Legal Ombudsman to deal with the complaint directly.

There is a limitation period of 6 years from the date of the act or omission, with provision for a later period of 3 years from the date of knowledge of the act or omission, and the Legal Ombudsman retains a discretion to extend time. Detailed rules of procedure establish an inquisitorial system for the garnishing of evidence, the receipt of representations, the grounds on which a complaint may be dismissed or discontinued and the possibility of an oral hearing, though most complaints will be resolved “on the papers”. The criteria by which a complaint will be determined are set out in rules 5.36 and 5.37:

5.36       An ombudsman will determine a complaint by reference to what is, in his/her opinion, fair and reasonable in all the circumstances of the case.

5.37       In determining what is fair and reasonable, the ombudsman will take into account (but is not bound by):

(a)         what a decision a court might make;

(b)         the relevant Approved Regulator’s rules of conduct at the time of the act/omission; and

(c)          what the ombudsman considers to have been good practice at the time of the act/omission.

It is these rules, which have led to the fearsome and often misunderstood proposition that the Legal Ombudsman is not bound to apply the law: what it means is best addressed by example. For instance, when looking at a solicitor’s conduct, in a case where there has been negligent advice, but that advice has not resulted in any financial loss to the client, t a court trying a professional negligence action would be bound to dismiss the case on the grounds of lack of causation of loss. The Legal Ombudsman is not bound to apply the law of causation and reach the same conclusion, and can simply give a remedy for poor service.

The Legal Ombudsman himself, is a creature of public law, his actions are amenable to judicial review and is accordingly bound by well established principles of public law to reach a decision which is legal, according to his powers.

Thus in this sense, the Legal Ombudsman is very much subject to law, and a solicitor aggrieved by a Legal Ombudsman’s decision is entitled to challenge the decision in the High Court. In the context, of a dispute about fees, given that the Legal Ombudsman has the power to award compensation of up to £50,000 or an unlimited ability to reduce fees, it can be seen that in a real sense the remedies available under the scheme, exceed those which would be available to a Costs Judge on a detailed assessment.

In general it can be observed that judicial reviews are hard to run successfully. In procedural terms, any claimant faces a number of hurdles, from the tight time limit that proceedings should be brought as soon as possible, to the requirement to grant permission. In substantive terms, the High Court, is usually prepared to afford a public law decision taker, acting in their particular area of expertise a degree of deference. But judicial reviews can be brought and won, against the Legal Ombudsman

The grounds upon which a decision of the Legal Ombudsman can be impugned are the full array of grounds which can be deployed in public law challenges in any context. These include ultra vires, jurisdictional error, error of law, error of fact, fettering a discretion, insufficient inquiries, bad faith or improper motive, unfairness, inconsistency, irrelevancy, Wednesbury unreasonableness, procedural unfairness, proportionality and also human rights, such as A1P1, where money is involved. Perhaps the most fruitful area for challenge lies, in the field of natural justice, including the obligation by the Legal Ombudsman to give a lawyer a chance to make representations and to give reasons for his decision.

Two relatively recent decisions of the High Court, illustrate some of the issues which arise in fee disputes. In the case of Stenhouse v Legal Ombudsman & Pasture [2016] EWHC 612 (Admin), this case concerned a dispute over a barrister’s fees, incurred on a Direct Access basis. A jurisdictional challenge to the Legal Ombudsman’s decision failed, but a challenge on the grounds of natural justice succeeded. The barrister’s conduct had been unfairly traduced in the decision, because the first he had known of the allegation was when he read about it in the decision.

In the case of Mitchell and Co v Legal Ombudsman and Patel [2016] EWHC 1933 (Admin) conversely, a solicitor’s challenge to a decision that he repay his client £34,000 in fees incurred under a contingency arrangement, on the basis of  (1) that the Ombudsman lacked jurisdiction to direct the repayment; (2) alternatively, that the Ombudsman’s decision was not founded upon the quality of the advice provided to the client, as he claimed, but rather on the fairness of the contingency fee agreement; and (3) the decision to direct repayment was irrational or unreasonable, failed on all grounds.

Overall, then the conclusion that I draw is that when a client disputes a solicitors’ fees, the cumbersome and expensive procedure of a solicitor own client assessment, may prove less advantageous than a complaint to the Legal Ombudsman, for the reasons outlined above. However, the popularity of this approach will hinge on whether the quality of the Legal Ombudsman’s decision making, is perceived to be comparable to a rigorous approach by a judge and whether in the years to come the current impasse in obtaining adverse costs protection can be overcome.

Broken justice

The original text of this article appeared in the August 2016 edition of Litigation Funding.

At the time of writing, the citizens of this country are still watching with a mixture of glee, horror and apathy as the results of the Brexit referendum unfold, with the resignation of the Prime Minister, the implosion of the Labour leadership, the political assassination of Boris Johnson and the resignation of Nigel Farage all following in ten days.

Whether the Ministry of Justice is currently taking calls at the moment is unclear, but it is a reasonable expectation that many of the putative reforms to costs and civil justice, have now gone, in Mr Obama’s memorable phrase “to the back of the queue”.

This is a great pity, as hard questions of access to justice in this country, are now unlikely to be posed, and if they are posed unlikely to be answered, whilst the political classes concentrate on the fallout from the referendum. Yet the questions are pressing and will not go away.

The median income in the United Kingdom, is about £26,000. Most people do not have savings of any magnitude and many do not have savings at all. If a medical disaster strikes, medical treatment can be extremely costly. Even non acute interventions such as a knee replacement operation to ease the pains of old age, might cost £9500 or more.

Yet the costs of these treatments, are for the most part not paid for by the recipient. In this country, one of its most treasured arrangements, is the National Health Service. It delivers medical care free at the point of delivery: not free care, because it is not free but rather ensures that the costs of those in need are spread throughout the general population and paid for by taxation.

Despite periodic criticisms and reforms, the scheme works rather well, is accepted by the public and represents a logical way for the needs of the unfortunate few to be paid for by the many, without undue strain.

It represents a collective approach to funding sophisticated and costly professional services, which are of benefit to private individuals, but also form a type of public good.

There is a clear analogy to be drawn with the provision of legal services. These services too are costly and whilst they are of benefit to private individuals, yet the provision of legal advice and representation to ensure access to justice is also a type of public good. After all, along with defence of the realm and a sound currency, one of the most basic functions of the state, is the administration of law and order, possibly even more so than the provision of funded health care.

It is as unreasonable in the twenty first century, to expect an individual with median income and no savings, to expose himself to £10,000 of legal costs, as it is to expect him to fund his surgical operations.

It could also be pointed out that there is a constitutional aspect to facilitating access to justice: it is all very well for Parliament through legislation to provide its citizens with rights and causes of action, whether in respect of employment rights, housing rights, or freedom from discrimination, yet it is the lawyers who bear the brunt in ensuring the practical aspect of enforcing those rights.

Yet, over the last few decades, sight has been lost of this key concept: that in a sophisticated, post industrial society with a complex body of legal rules, there needs to be collective funding of legal services to make the system work.

Successive governments, have in fact, largely destroyed the Legal Aid system, so that large parts of the country are a Legal Aid “desert” and large numbers of cases do not qualify for public funding assistance.

Yet none of the ad hoc alternatives for funding of legal costs meet this need for the collective funding of legal services, spreading the costs across a large pool: CFAs depend on the willingness of solicitors to enter into them, BTE insurance is limited, lacking in range and often of inadequate scope, third party funding is largely limited to big commercial claims and the thorny consequential issue of liability for adverse costs, outside personal injury claims is ignored.

I would ascribe this problem to a failure in vision and a failure in courage: there are some things the state does do best and a properly resourced and comprehensive Legal Aid scheme, would not be in my judgment, an unnecessary luxury for our country. But post 23rd June 2016, this isn’t going to happen any time soon.

Accordingly, one of the more interesting proposals put forward this year by Jackson LJ, was to actually take forward a Contingency Legal Aid Fund (CLAF) some 40 years after it was first proposed. I understand a working group has now been formed to do so.

A CLAF in its purest form is a funding body, which backs cases, paying a claimant’s costs win or lose. It can be a private venture. A CLAF need not be backed or established or funded by the state at all, though that one would be one option.

If the claimant succeeds in his case, the costs funded by the CLAF are recovered from the losing party to the litigation and in addition, the claimant pays over to the fund a proportion of the compensation recovered from the losing party. The fund is self financing, funding the costs and its own overheads out of the recoveries made in successful cases. It is not a panacea: claimant’s necessarily lose part of their compensation as part of the terms of the funding, and it can only apply to money claims.

Of critical importance, is what provision is made in respect of adverse costs, should a funded claim be lost. Unless a CLAF is established on a statutory footing, with similar provision for qualified one way costs shifting such as Legally Aided litigants have under the Access to Justice Act 1999, or personally injury claimant’s, through the QUOCS scheme established under part 44 CPR, then a claimant who proceeds with the backing of the fund will necessarily face the prospect of adverse costs orders in the usual way.

Because it would be unsatisfactory for individual claimant’s to face potentially ruinous claims for costs, and indeed render the whole notion of access to justice through litigation illusory as such claimants would drop their cases, rather thanshoulder such a risk, it would be a necessary part of the scheme, that the fund itself pay any adverse costs, either through self insurance, or through the purchase of ATE cover: in effect reinsurance and catastrophe level insurance.

That is the broad model of a CLAF: variations of it can be proposed, so that for example the fund might only fund disbursements, or disbursements and adverse costs, and require lawyers to work on the basis of a Conditional Fee Agreement (CFA).

In such a case, the fund would work as funder of last resort, providing only pump priming the necessary level of capital investment, but also ensuring that an added layer of robustness is brought to the decision making, by aligning its interests with those of the lawyers.

Although the concept of such a scheme has been lauded, with various proposals put forward in 1978, 1997 and 2011, the scheme has never been take forward because it would represent a poor relation to CFAs with recoverable success fees and ATE insurance with recoverable premiums. In a post LASPO 2012 world, such considerations have faded away: there is now a real and measurable funding gap and proper cases, affecting individuals failing to come forward.

If for example, you have a meritorious claim for disability discrimination in respect of the provision of goods or services under the Equality Act 2010 to litigate in the County Court, you may, just may, be able to find a lawyer willing to take your case under a CFA: but it is most unlikely that you will find any ATE insurer willing to back the case. If you do, it will be at a ruinous premium and if for example substantial disbursements such as expert fees are also required, the case in all probability is going nowhere.

Varieties of CLAFs, have been established in countries such as Hong Kong and Australia, with the latter in particular in its various states of South Australia and Western Australia, having different criteria and funding different elements of litigation, with Victoria, Tasmania and the Northern Territory, all having more limited schemes, which fund disbursements only.

In his keynote address at the Solicitors Costs Conference on 2nd February 2016 “The Case for a CLAF” Jackson LJ postulated that the Law Society, CiLEX, and the Bar Council, could promote the establishment of a CLAF as not for profit third party funder: in effect, a third party funder which does not concentrate on big ticket commercial litigation, or jury actions in the USA, but rather supports the individual claims of citizens and consumers.

It would have professional administration, and it’s own secretariat of lawyers to assess which cases were suitable for funding. The actual funding itself he suggests, could come from government (very unlikely) the National Lottery (unlikely)….or the lawyers! If individual barristers or solicitors bought bonds, which carried a coupon, then funding could be raised that way.

In fact, the funding options are perhaps rather wider than Jackson LJ suggests: there is little doubt that if people are prepared to crowd fund litigation, solar panels, and carbon credits, then there may well be an appetite for an investment of this nature.

Moreover, as the fund would only be concerned with damages actions where recovery of costs is made it could require as so many BTE insurance companies do, that the lawyers work on a CFA, aligning their interests with the fund, and spreading its funds further, by concentrating on funding disbursements such as expert fees, and acting as insurer of last resort for adverse costs. It is this latter point, which I identify as the real barrier to access to justice, which such a fund could address. Given that we are now moving towards a 0% interest rate world, if you have a spare few thousand quid to invest, there could be worse investments to place it in.

A copy of this article in PDF format can be downloaded here: PDF