Assecuratus non quaerit lucrum sed agit ne in damno sit

The Platinum Jubilee is over. Amidst the caterwauling and sentimentality, with the press obsessing over the soap opera of royal life, and the cost of it all, some people are doubtless yearning that we lived in a republic. Set against that the prospect of a superannuated politician wearing a crown or occupying the newly presidential and expensively refurbished Buckingham Palace may not fill them with enthusiasm either. Perhaps it is enough to simply enjoy the party, and not worry about tomorrow. There are enough problems in the world as things stand anyway.

Fortunately the business of costs grinds on, affording endless interest for those who care about such things. Last month there was another installment in the long running litigation concerning Slater and Gordon currently immersed in solicitor own client costs disputes. The judgment was handed down in the conjoined cases of Edwards and Raubenheimer-v-Slater-and-Gordon-UK-Ltd [2022] EWHC 1091 (QB) The judgment repays careful study, as it deals with a number of interesting points. It may yet go further. I note at the outset that although the solicitors lost on all points, an application has been made to the Court of Appeal for permission to appeal. 

The cases are decisions made by Mr Justice Ritchie (sitting with Costs Judge Simon Brown as an assessor) arising in the context of solicitor own client assessments pursued further to section 70 of the Solicitors Act 1974. The defendant firm acted for the claimants in personal injury claims and made deductions from damages. The actual decisions of Costs Judge Rowley under appeal can be characterised as interlocutory or preliminary in nature, rather than being the substantive determinations of the solicitor own client assessments. As noted by the judge:

[23] The challenged decisions of the Judge in Edwards are:
(1) the order requiring the Defendant to provide standard disclosure relating to the
pleaded issues;
(2) the Judge’s refusal to stay the claims or to order the Claimants’ solicitors to provide
security for costs of £700,000 or less;
(3) for the Defendant to pay the costs of the applications.

[24] The Claimant in Raubenheimer appeals the Costs Judge’s refusal to order part 18 replies
to requests made by the Claimant

The context of the appeals was summarised thus:

[41] The Defendant signed up the Claimants on their standard form CFAs for their individual PI claims and all the claims were run through the Portal. I do not know whether all stayed in the Portal or some exited. All were won or settled. Damages were payable to each Claimant. The Defendant deducted from each Claimant’s damages various sums relating to Slater and Gordon’s URCs and the ATE premiums.

[42] The Claimants were dissatisfied with the Defendant’s URC deductions from their damages settlements or awards and all retained CLL to request the Defendant to submit bills of costs and then to bring part 8 claims for SOCAs of the Defendant’s bills. The claims were all issued and now there are approximately 150 claims in which the Claimants seek to challenge the deductions made by the Defendant. Mr. Raubenheimer and the Edward’s Claimants also challenged the placing of the whole ATE figures in the Cash Accounts suspecting that secret commissions have been paid to Slater and Gordon which should be credited to the Claimants.

The part of the judgment in Edwards which is of greatest interest concerns the application for a stay in default of security for costs being provided by the claimants’ solicitors. This application was grounded on the fact that they had provided an indemnity to the claimants against any orders for adverse costs made in the various claims. This indemnity was argued to be objectionable on the basis that it constituted either an unregulated contract of insurance or was champertous and pursuant to rule 25.14 CPR that security for costs should be provided.

The court rejected the argument that the claimants solicitors were providing unregulated “insurance”. A useful summary of the principles to be applied when considering whether an indemnity would “cross the line” into being an unregulated contract, was made in these terms when considering whether any particular indemnity constitutes an insurance contract:

[178] The Court should take the following steps:
(1) Determine whether the indemnity term / wording on its own can be properly characterised as an insurance provision by reference to the two necessary factors: (a) does the alleged insurer contract to pay out money or money’s worth on the future occurrence of some chance or fortuity. (b) Does the alleged insurer receive a premium in money or money’s worth for the contract so to pay, whether it be upfront or delayed?
(2) If the answer to the first question is: there is no insurance provision, then no further analysis is required.
(3) If the answer to the first question is: this is an insurance provision, then this Court should consider the various factors necessary to determine whether or not the whole contract is to be characterised as an insurance contract and hence needs to be regulated by the insurers’ regulator or not. In this second step the Court should determine whether the contract is a single purpose contract.
(4) Single Purpose contract: the Court should determine whether there is a single purpose for the contract or multiple purposes. Put another way whether there is a single objective or multiple objectives. Put another way whether the contract is just for insurance or indemnity or also for something else as well. If the contract is a single purpose contract, so for instance the provider seeks to provide insurance for premiums, then the Court doesn’t need to go any further. However if the contract has multiple purposes or objectives or contracted for activities then further analysis is required properly to categorise the contract.
(5) Mixed purpose contracts: What factors are to be taken into account when characterising a mixed purpose contract? I consider that the following are relevant in these claims:
(a) the purposes and objectives of the parties; and
(b) the proposed and contracted future activities of the parties;  and 

(c) the moneys or benefits in kind moving between the parties and third parties and how they are calculated; and
(d) the full terms of the contract including termination clauses, arbitration clauses and variation clauses; and
(e) where the risks fall; and
(f) the marketing carried out by the parties; and
(g) the businesses of the parties; and
(h) the regulators of the parties (if any); and
(i) all factors relating to the contract and what it looks like to an objective bystander.
(6) Once those factors have been considered, it is for the Court to determine whether the main purpose or purposes, objective or objectives of the contract is/are insurance business or whether those purposes are in fact the supply of goods, like washing machines with a guarantee or warranty, or the supply of services, like legal services with an indemnity. Then the Court has to determine whether or not the indemnity is a mere adjunct to, or is peripheral to, or is ancillary to the main purposes of the contract.

The court then considered and dismissed the arguments that the indemnity fell foul of the rule against champerty in these terms:

[193] The only financial benefit which CLL would achieve from the claims would be the receipt, from the Defendant, of their assessed (never upwards and more probably downwards) legal fees on winning.

[194] The classic Champerty categories arise where the funder gains from a share of the claimants’ “damages” or sums won. There is no such gain by CLL in my judgement through a lawyer simply receiving assessed fees for legal work. The circumstances in which they would be able to receive fees from the Claimants were limited and in my judgement unlikely to occur against this Defendant: the trigger being a win with a no costs order.

[195] I reject the submission that hourly rates at the levels claimed by CLL can be regarded as champertous profiteering.

[196] I have considered the public interest in access to Justice for Claimants who feel aggrieved by deductions made from their damages by PI firms. I consider that it is in the public interest for claimants generally and these Claimants specifically to be enfranchised to test the way in which those fees were explained, charged, deducted and calculated.

[197] I dismiss the appeal on the grounds of asserted Champerty.

Finally, the judge found that in any event the threshold requirements of rule 25.14 CPR were not made out:

[201] Looking at those factors and CPR r.25.14, I do not consider that the recovery of hourly rates for legal work on winning a case can be categorised as “a share of any money or property which the Claimant may recover”. Although, on winning, a Claimant does recover her/his lawyers’ costs, he does not receive them into his pocket. They go to his lawyers. They are not the Claimant’s recovered winnings. Claimants do not bring claims just so that their lawyers will get paid.

[202] I note that those words are in the very same paragraph in the rule as the words: “has contributed or agreed to contribute to the Claimant’s costs”. The difference is telling. I do not consider that CLL contributed to the Claimants’ costs by providing the indemnity. They were going to do the work for free under the CFA in any event, unless the claims were won.

[203] CLL are not commercial litigation funders for profit, they are lawyers providing a legal service to these Claimants and the only profit they make is that part of the hourly rates recovered which exceed their operating expenses and liabilities.

[204] In relation to impecuniosity, in the absence of any evidence served and filed by Slater and Gordon from a forensic accountant explaining the significance of the public financial statements of CLL and in the absence of any profit and loss accounts at all, I find myself unable and unwilling to make any adverse ruling on impecuniosity. The evidence showed the assets of the business of CLL to be over £3 million. Defence counsel’s rather harsh assertions about the invalidity of the listed £3 million of assets owned by CLL were nothing more than submissions by a barrister. I do not see that there was any proper evidence before the Judge on which to found a ruling of there being a realistic risk of impecuniosity. I also reiterate that no evidence was put before the Judge on whether CLL’s professional insurance would have covered any such losses should they go bust in future. I uphold the Judge’s decision on this matter.

[205] In any event, even if I am wrong, Justice is one of the two factors to consider in the CPR r.25.14 test. The Judge did not consider it just to make any security for costs order and I do not consider it just so to do either. When asked how it would be just to the Defendant’s ex-clients to have their claims stayed because their first lawyers were squabbling with their second lawyers over the latter allegedly having insufficient funds to pay the first lawyers’ legal fees if the assessments went against the clients, the Defendant submitted that Slater and Gordon might not get paid in full due to suspected impecuniosity. I have dealt with that assertion above. Weighed against that risk is the principle that access to Justice is important. All litigation is uncertain. No PI solicitors firm is immune from financial pressures as the financial history of many firms (some of which have gone bust and others of which have been taken over) during the last 20 years has shown.

[206] For the reasons provided by the Judge and above I dismiss the appeal on security for costs.

The case of Raubenheimer concerned a Part 18 request made to elicit information about the ATE insurance policy the claimant had effected through the agency of his solicitors. It was described in these terms:

[207] By a request dated 26 August 2020 the Claimant (Raubenheimer) asked for a copy of his ATE policy; the details of intermediaries used; the commissions or payments received directly or indirectly from the ATE insurers by the Defendant and/or to whom they were paid and any other financial benefits which came back to the Defendant or any associate. The Defendant refused all the requests.

[208] In the Cash Account the Defendant asserted the past payment of a premium for the ATE policy of £258.87 on 24 October 2017. No commissions or payments back from the ATE insurer were listed.

Of course, the quantum of an ATE insurance premium is not a matter for a solicitor-own client assessment. It is not a solicitors disbursement, and under section 70 a court has no power to reduce it, as it does not (should not!) form part of a solicitor’s bill of costs to her client. However, this did not deter the judge from finding that Costs Judge Rowley fell into error, when declining to order a part 18 request to be answered:

[219] Here I consider that the Judge fell into error. In my judgement the Cash Account cannot be signed off in the SOCA and no order can be made by the CJ for sums to be paid to or by the Defendant or the Claimants unless the items in the Cash Account are accurate and certified by the CJ. If they are in dispute, that dispute must be resolved before the final SOCA order can be made between the parties.

[220] The Judge ruled (para. 37) that a challenge to the ATE premium should be determined
in the Chancery Court.

That led the High Court judge to conclude:

[224] I consider that the Judge fell into error when refusing to order the Defendant to answer the part 18 requests relating inter alia to the alleged secret commissions.

[225] I rule that, properly to facilitate the efficient handling of the next case management hearing, the part 18 requests should be answered so that the Judge can get a proper grasp of the issues, the Claimants can determine whether there is anything to worry about, or whether it is all a storm in a teacup, and the Defendant can consider whether to fight or settle the claims for alleged secret commissions.

[226] I did offer the Parties a way out of the secret commission issue by suggesting that a partner in the Defendant firm sign a statement of truth on the Cash Account in Raubenheimer, but no agreement could be reached on whether that would fully bite on the issues, so the parties did not accept that this suggestion would resolve the issues.

[227] Once the part 18 requests are answered and the Defendant provides disclosure the Raubenheimer claim, it will go with the other lead claims in Edwards, for determination of where, when and by whom the alleged secret commission issues will be tried (or assessed).

Pending a decision on the application for permission to appeal to the Court of Appeal, the significance of this judgment remains as yet uncertain. However if one assumes that the Court of Appeal refuses permission it will have two effects. The first is that the facility of a solicitor offering indemnities for adverse costs to a client whilst acting for them under a conditional fee agreement will have been confirmed to be legal, in yet another decision at High Court level.

This decision will have wide ramifications for clients, for the range of work a solicitor can take on, and for the ATE insurance industry, which may find a competitor has entered the market place, with a new and more attractive product. Yet the regulatory and consumer protection concerns remain. What redress will a client have against a solicitor who has provided indemnities, yet goes bust before payment, having indemnified too many losing cases and bitten off more than they can chew?

The second is that the dividing line between part 7 and part 8, the SCCO and the Chancery Division now appears not to be a curtain wall, but rather to be no more than an obscured line in the sand. The Costs Judges are taking (or rather, being given) ever greater jurisdiction.

Finally, the cash account, which has hitherto been treated as a ledger now takes on a greater significance: it is difficult to reconcile the reasoning in the case of Herbert with the decision in this case. Where will it end? If the allegation is not one of secret commissions, but rather professional negligence in advising that a particular premium be incepted, does this affect the integrity of the cash account? Logically it should not, as a cross claim for damages, cannot alter the fact that a particular payment has been made. But at the moment the boundaries of the approach taken by Ritchie J are most uncertain.

 

 

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