Lord Justice Hickinbottom:
- The First Respondent ("Ms Bamrah") was admitted as a solicitor in December 1999. Since 3 July 2008, she has been in practice as a sole practitioner under the style Falcon Legal Solicitors ("Falcon Legal"). The firm was incorporated in 2012, but continued to trade under the same name.
- Falcon Legal acted for Ms Bamrah as claimant in a successful personal injury claim against the Appellant ("Gempride"). Gempride was ordered to pay Ms Bamrah's costs.
- This is an appeal against the Order of His Honour Judge David Mitchell (sitting with District Judge Langley as an assessor) dated 19 December 2016, allowing an appeal against the Order of Master Leonard sitting as a Deputy District Judge dated 5 March 2014 in which the Master as part of the detailed assessment, exercising powers under CPR rule 44.11, disallowed Falcon Legal's profit costs above the litigant-in-person rate because Ms Bamrah on behalf of the firm (i) had certified the bill of costs filed and served for assessment with an hourly rate substantially in excess of that which she as a client was contractually bound to pay the firm and (ii) had given an answer to a Point of Dispute on that bill that was untrue or misleading, namely that she did not have before the event legal expenses insurance ("BTE insurance") available in respect of the costs of the claim.
The Scope of CPR Rule 44.11
- Parliament requires that those who conduct litigation or exercise a right of audience on behalf of others are subject to a rigorous regulatory scheme, and have an overriding duty to the court.
- Section 13 of the Legal Services Act 2007 ("the 2007 Act") restricts the performance of "restricted legal activities" to persons who are either authorised or exempt, including the employees of such persons (section 15). Section 12(1) defines "restricted legal activities" to include the conduct of litigation (section 12(1)(b)) and the exercise of a right of audience (section 12(1)(a)). To conduct litigation or exercise a right of audience without being entitled to do so is a criminal offence (section 14).
- The provisions relating to exempt persons are irrelevant to this appeal. By section 18, an "authorised person" is a person who is authorised to carry on the relevant activity by an approved regulator subject to oversight by the Legal Services Board, itself an approved regulator.
- Amongst others, the Law Society, the General Council of the Bar and the Association of Law Costs Draftsmen are approved regulators in relation to the conduct of litigation and the exercise of a right of audience (section 20(2) and (3) of, and Part 1 of Schedule 4 to, the 2007 Act). In October 2011, the Association of Law Costs Draftsmen delegated its relevant functions under the 2007 Act to the Costs Lawyers Standards Board ("the CLSB"). The CLSB may therefore authorise law costs draftsmen to conduct litigation and exercise a right of audience.
- Approved regulators are responsible for promoting the "regulatory objectives" set out in section 1(1), which include promoting and maintaining adherence to the "professional principles" set out in section 1(3) of the 2007 Act (sections 3(2)(b) and 28). These include:
"(b) that authorised persons should maintain proper standards of work
(d) that persons who exercise before any court a right of audience, or conduct litigation in relation to proceedings in any court, by virtue of being authorised persons should comply with their duty to the court to act with independence in the interests of justice".
- A regulated person has a general obligation to comply with the regulatory scheme as it applies to him (section 176); and, in conducting litigation and exercising any right of audience, has an overriding duty to the court in question to act with independence in the interests of justice (section 188(2) and (3)). An authorised person is therefore subject to not only regulation by a professional regulator (which includes provision for sanctions for professional misconduct) but also supervision directly by the court.
- In the conduct of litigation, the court is entitled to assume that an authorised person such as a solicitor will comply with his duty to the court. As Judge LJ put it in Bailey v IBC Vehicles Limited  3 All ER 570 ("Bailey") at page 574j:
"As officers of the court, solicitors are trusted not to mislead or to allow the court to be misled. This elementary principle applies to the submission of a bill of costs".
That theme was taken up by Henry LJ in a concurring judgment (at pages 575g-576c), with which Butler-Sloss LJ expressly agreed.
"RSC Order 62 rule 29(7)(c)(iii) [now CPR PD 47 paragraph 5.21] requires the solicitor who brings proceedings for taxation to sign the bill of costs. In so signing he certifies that the contents of the bill are correct. That signature is no empty formality. The bill specifies the hourly rates applied, and the care and attention uplift claimed. If an agreement between the receiving solicitor and his client… restricted (say) the hourly rate payable by the client, that hourly rate is the most that can be claimed or recovered on taxation…. The signature on the bill of costs under the rules is effectively the certificate by an officer of the court that the receiving party's solicitors are not seeking to recover in relation to any item more than they have agreed to charge their client under a contentious business agreement.
The court can (and should unless there is evidence to the contrary) assume that his signature to the bill of costs shows that the indemnity principle has not been offended….
… [T]he other side of a presumption of trust afforded to the signature or an officer of the court must be that breach of that trust should be treated as a most serious disciplinary offence."
The rule number and terminology have of course subsequently changed; but the principles set out in that passage remain good. Indeed, they are well-established and trite law. Neither party before us suggested otherwise.
- There are a number of provisions which reflect the court's supervisory function over authorised persons conducting litigation. Two are relevant in this appeal.
- First, section 51(6) of the Senior Courts Act 1981, CPR rule 46.8 and CPR PD 46 paragraph 5 give the court the power, amongst other things, to order a legal representative to meet, or to disallow, "wasted costs" resulting from any improper, unreasonable or negligent act or omission of that representative. The jurisdiction is compensatory, and an applicant has to show a causal connection between the conduct of which complaint is made and the costs it seeks to have met or disallowed. I consider this jurisdiction below (see paragraph 17 and following).
- Second, under the heading, "Court's powers in relation to misconduct", CPR rule 44.11(1) and (2) (until 1 April 2013, numbered rule 44.14(1) and (2)) provide:
"(1) The Court may make an order under this rule where –
(a) a party or that party's legal representative, in connection with a summary or detailed assessment, fails to comply with a rule, practice direction or court order; or
(b) it appears to the court that the conduct of a party or that party's legal representative, before or during the proceedings or in the assessment proceedings, was unreasonable or improper.
(2) Where paragraph (1) applies, the court may –
(a) disallow all or part of the costs being assessed; or
(b) order the party at fault or that party's legal representative to pay costs which that party or legal representative has caused the other party to incur".
- An order under CPR rule 44.11 can only be made against a party or a party's legal representative. The jurisdiction is not compensatory: it is not necessary to show that the applicant has suffered any loss as a result of the misconduct. It is a jurisdiction intended to mark the court's disapproval of the failure of a party or of a legal representative to comply with his duty to the court by way of an appropriate and proportionate sanction.
- "Legal representative" is defined in CPR rule 2.3(1) to be, and to be only, a:
(c) solicitor's employee
(d) manager of a body recognised under section 9 of the Administration of Justice Act 1985; or
(e) person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes the conduct of litigation (within the meaning of that Act)".
- The focus of this appeal is upon rule 44.11(1)(b), the basis of the application being that Ms Bamrah's conduct had been "unreasonable or improper". The CPR do not attempt any definition of "unreasonable or improper conduct" for these purposes, although paragraph 11.2 of CPR PD 44 provides:
"Conduct which is unreasonable or improper includes steps which are calculated to prevent or inhibit the court from furthering the overriding objective."
- It was however common ground before us that "unreasonable" and "improper" here have the same meanings as they have in the wasted costs provisions, for the reasons given by Dyson LJ in Lahey v Pirelli Tyres Limited  EWCA Civ 91 at : both provisions apply to legal representatives, and it is unlikely that it was the draftsman's intention that such a representative could be liable under CPR rule 44.11 in circumstances in which a wasted costs order could not be made. Therefore, a similarly narrow construction of the terms should be given in each context; and it is appropriate to look to wasted costs authorities for guidance on the scope of "unreasonable or improper" conduct in the context of CPR rule 44.11.
- The history of the court's power to make wasted costs orders against legal representatives, initially through its inherent jurisdiction over solicitors as officers of the court and later through statute and rules of court, is helpfully set out in the judgment of the Court of Appeal, delivered by Sir Thomas Bingham MR, in Ridehalgh v Horsefield  Ch 205 ("Ridehalgh"). I need not repeat it here. Suffice it to say that the current basis under which a court may disallow, or order a representative to meet, "wasted costs" is section 51 of the Senior Courts Act 1981, which, in section 51(7), defines "wasted costs" as:
"… any costs incurred by a party—
(a) as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative; or
(b) which, in the light of any such act or omission occurring after they were incurred, the court considers it is unreasonable to expect that party to pay."
As I have indicated, the procedure for wasted costs orders is dealt with in CPR rule 46.8 and CPR PD 46 paragraph 5.
- The meaning of "improper, unreasonable or negligent" for the purposes of these statutory threshold criteria was considered "not open to serious doubt" by the Court of Appeal in Ridehalgh, where the phrase was considered in the context of the predecessor of CPR rule 46.8, namely RSC Order 62 rule 11.
- Sir Thomas Bingham emphasised that the court's jurisdiction to make a wasted costs order against a solicitor is founded on a breach of the duty owed by the solicitor to the court as an officer of the court; and, to fall within the scope of "improper, unreasonable or negligent" for the purposes of wasted costs, the conduct of a solicitor must amount to a breach of that duty (see page 227D and 232H-233A) (see also Patel v Air India Limited  EWCA Civ 443 at  and  per Longmore LJ, to the same effect). To show a breach of that duty, it is not necessary to establish dishonesty (page 227C-E, and 228B); indeed, later cases have suggested that the wasted costs procedure – essentially summary in nature – may be inappropriate to deal with allegations of dishonesty (see, e.g., Turner Page Music v Torres Design Associates (1998) Times, 3 August 1998 (CA)).
- The Master of the Rolls in Ridehalgh defined "improper" and "unreasonable" in these terms (at page 232D-G):
" 'Improper' means what it has been understood to mean in this context for at least half a century. The adjective covers, but is not confined to, conduct which would ordinarily be held to justify disbarment, striking off, suspension from practice or other serious professional penalty. It covers any significant breach of a substantial duty imposed by a relevant code of professional conduct. But it is not in our judgment limited to that. Conduct which would be regarded as improper according to the consensus of professional (including judicial) opinion can be fairly stigmatised as such whether or not it violates the letter of a professional code.
'Unreasonable' also means what it has been understood to mean in this context for at least half a century. The expression aptly describes conduct which is vexatious, designed to harass the other side rather than advance the resolution of the case, and it makes no difference that the conduct is the product of excessive zeal and not improper motive. But conduct cannot be described as unreasonable simply because it leads in the event to an unsuccessful result or because other more cautious legal representatives would have acted differently. The acid test is whether the conduct permits of a reasonable explanation. If so, the course adopted may be regarded as optimistic and as reflecting on a practitioner's judgment, but it is not unreasonable."
- CPR rule 44.11, unlike the wasted costs jurisdiction, does not apply when the conduct is no more than "negligent"; but, Mr Singh submitted, it is important to consider how "negligent" conduct was construed in Ridehalgh, because only in that way can the proper scope of the more serious "unreasonable or improper" conduct be appreciated. Sir Thomas Bingham said (at pages 232G-233E):
"The term 'negligent' was the most controversial of the three. It was argued that the 1990 Act, in this context as in others, used 'negligent' as a term of art involving the well-known ingredients of duty, breach, causation and damage. Therefore, it was said, conduct cannot be regarded as negligent unless it involves an actionable breach of the legal representative's duty to his own client, to whom alone a duty is owed. We reject this approach. (1) As already noted, the predecessor of the present Order 62 rule 11 made reference to 'reasonable competence'. That expression does not invoke technical concepts of the law of negligence. It seems to us inconceivable that by changing the language Parliament intended to make it harder, rather than easier, for courts to make orders. (2) Since the applicant's right to a wasted costs order against a legal representative depends on showing that the latter is in breach of his duty to the court it makes no sense to superimpose a requirement under this head (but not in the case of impropriety or unreasonableness) that he is also in breach of his duty to his client.
We cannot regard this as, in practical terms, a very live issue, since it requires some ingenuity to postulate a situation in which a legal representative causes the other side to incur unnecessary costs without at the same time running up unnecessary costs for his own side and so breaching the ordinary duty owed by a legal representative to his client. But for whatever importance it may have, we are clear that 'negligent' should be understood in an untechnical way to denote failure to act with the competence reasonably to be expected of ordinary members of the profession.
In adopting an untechnical approach to the meaning of negligence in this context, we would however wish firmly to discountenance any suggestion that an applicant for a wasted costs order under this head need prove anything less than he would have to prove in an action for negligence : 'advice, acts or omissions in the course of their professional work which no member of the profession who was reasonably well-informed and competent would have given or done or omitted to do'; an error 'such as no reasonably well-informed and competent member of that profession could have made' (Saif Ali v Sydney Mitchell & Co, at pages 218D, 220D, per Lord Diplock)."
- Of the three terms, he concluded (at page 233E-F):
"We were invited to give the three adjectives (improper, unreasonable and negligent) specific, self-contained meanings, so as to avoid overlap between the three. We do not read these very familiar expressions in that way. Conduct which is unreasonable may also be improper, and conduct which is negligent will very frequently be (if it is not by definition) unreasonable. We do not think any sharp differentiation between these expressions is useful or necessary or intended."
- Ridehalgh was endorsed by the House of Lords in Medcalf v Weatherill  UKHL 27 (see  and ); and, in respect of wasted costs orders, the scope of "improper, unreasonable or negligent" as set out in Ridehalgh has never since been seriously questioned.
- Finally, Ridehalgh confirmed that a solicitor does not abdicate his professional responsibility when he delegates or subcontracts work that he is retained to do, even when he seeks advice from another legal representative such as counsel (at page 237G, endorsing guidance in Locke v Camberwell Health Authority  2 Med LR 249).
- Therefore, returning to CPR rule 44.11, the following propositions relevant to this appeal can be made.
i) A solicitor as a legal representative owes a duty to the court, and remains responsible for the conduct of anyone to whom he subcontracts work that he (the solicitor) is retained to do. That is particularly so where the subcontractor is not a legal representative and so does not himself owe an independent duty to the court.
ii) Whilst "unreasonable" and "improper" conduct are not self-contained concepts, "unreasonable" is essentially conduct which permits of no reasonable explanation, whilst "improper" has the hallmark of conduct which the consensus of professional opinion would regard as improper.
iii) Mistake or error of judgment or negligence, without more, will be insufficient to amount to "unreasonable or improper" conduct.
iv) Although the conduct of the relevant legal representative must amount to a breach of duty owed by the representative to the court to perform his duty to the court, the conduct does not have be in breach of any formal professional rule nor dishonest.
v) Where an application under CPR rule 44.11 is made, the burden of proof lies on the applicant in the sense that the court cannot make an order unless it is satisfied that the conduct was "unreasonable or improper".
vi) Even where the threshold criteria are satisfied, the court still has a discretion as to whether to make an order.
vii) If the court determines to make an order, any order made (or "sanction") must be proportionate to the misconduct as found, in all the circumstances.
The Factual Background
- The underlying claim was straightforward enough.
- On 10 July 2008, Ms Bamrah visited a client in a block of flats owned by Gempride. Whilst leaving, she tripped over a doorstop in the floor, and fell heavily on her right side. She suffered no bony injury, but considerable soft tissue injuries to her right hand, arm and shoulder.
- On 13 November 2008, Ms Bamrah wrote a letter before claim to a company in Gempride's group, understanding it to be the owner of the relevant premises. On 16 January 2009, Gempride's insurers (AXA Insurance ("AXA")) admitted liability on its behalf.
- There then followed considerable exchanges concerning quantum. On 20 June 2011, Ms Bamrah issued protective proceedings in the Croydon County Court, the Claim Form indicating that the value of the claim exceeded £25,000 but not £50,000. However, on 22 November 2012, she served a schedule of pecuniary loss claiming nearly £750,000, which was increased to just over £900,000 on 8 January 2013.
- Gempride through AXA made several offers of settlement, including a Part 36 offer of £50,000 on 18 March 2013. Ms Bamrah accepted that offer late, on 12 April 2013, on the basis that Gempride would also pay her costs.
The Costs Proceedings
- The costs proceedings were less than straightforward.
- Ms Bamrah specialises in personal injury claims. Her accident occurred just a week after she had set up as a solicitor on her own account. She had a household insurance policy that included BTE insurance with ARC Legal Assistance Limited ("ARC"). Following her accident, on 22 August 2008 she contacted ARC, and spoke to their panel solicitors, Irwin Mitchell, who sent her a claim form to complete. Irwin Mitchell's covering letter stated (emphasis in the original):
"We are required to tell you at this stage of your claim you are only covered for legal fees incurred by this firm…
If you have, or are about to instruct another firm of solicitors… to run your case, their fees will not be covered under this insurance."
This properly reflected the terms of the insurance policy, which provided that cover was restricted to (i) costs incurred with ARC's prior consent, (ii) prior to the issue of proceedings, the costs of an approved panel solicitor only, and (iii) solicitor's costs at the rate of £135 plus VAT per hour. (In this judgment, unless otherwise stated, all cost rates etc will be VAT exclusive unless otherwise indicated.) None of those terms was unusual in such a policy.
- However, Ms Bamrah wished to handle her own claim, through her own firm; and she made that clear when returning the completed claim form to Irwin Mitchell on 13 November 2008. She said that her charging rate was £232 per hour, and she sought their authority to instruct her own firm. On the basis of the available evidence, she assessed the prospects of success at 80%.
- On 18 November 2008, ARC wrote to Falcon Legal (and, separately, to Ms Bamrah herself in similar terms) confirming that the insurance policy "will only cover legal fees incurred by panel solicitors prior to the issue of legal proceedings"; and that if Ms Bamrah wished Falcon Legal to continue to act for her:
"… [S]ubject to our final assessment of the claim and agreement with you as to costs, we will be able to indemnify costs that you and the third party incur after the court proceedings are issued…. Until such time, Underwriters are not liable for any such costs incurred in this case."
- On 20 November 2008, Ms Bamrah, determined to have her own choice of solicitor, purported to enter into a Conditional Fee Arrangement ("CFA") with Falcon Legal, completing the Risk Assessment, Funding Options Checklist and CFA herself. She signed the CFA for both the firm as service provider, and herself as client. It is now common ground that that contract was void – because Ms Bamrah was a sole practitioner and she was unable to contract with herself – but at all material times it was treated as being legally effective.
- In the Funding Options Checklist, in response to the question, "Is any 'other funder' available?", Ms Bamrah responded, "Yes", clearly a reference to the BTE insurance with ARC; and, in response to the follow up question, "If yes why has it not been used", she said, "Refuse to fund until proceedings issued". To the question, "Is a Before the Event Legal Expenses Insurance policy available?", she responded, "Yes", but indicating that permission to use it had been requested but refused.
- The CFA was in two, standard form parts:
i) Part 1: a two-page document signed by Ms Bamrah on behalf of both herself and Falcon Legal, and, although being completed on 20 November 2008, it was dated "10 July 2008". It provided for a success fee of 100%. It expressly incorporated the second part.
ii) Part 2: a longer document, in the form of the Law Society's standard terms for a personal injury CFA adapted for the purposes of the case. It gave the date of the instructions as "11/07/2008", with basic charges being set from that date. The basic charge hourly rate was expressed to be £232 per hour, reviewable annually. The terms said: "We will notify you of any change in the rate in writing". The VAT rate in the version of this document eventually disclosed to Gempride was 20%, a matter to which I shall return when I deal with the Respondent's Notice (see paragraph 153 and following below).
- At that stage, despite the requirement of the then-current paragraph 4A.1 of the Practice Direction on Protocols to do so, Falcon Legal did not inform Gempride or AXA (who were conducting the correspondence on Gempride's behalf) about the CFA. Liability having been accepted in January 2009, the quantum claim was prepared by Falcon Legal under the CFA, Ms Bamrah being the only fee-earner working on the case.
- The primary limitation period was due to expire on 10 July 2011. On 11 June 2011, Falcon Legal wrote to ARC seeking authority for the firm to handle to claim after proceedings had been issued: and, on the same day, they wrote to AXA in the following terms:
"… [P]lease note that whilst we are still pursuing our client's legal expense insurers for appropriate funding of the proceedings, however, in the meantime we continue to conduct this claim under a [CFA] that provides for success fee. A Notice of Funding will be forwarded shortly."
- ARC refused to authorise Falcon Legal to conduct the litigation, on the basis that "it would be fundamentally wrong to allow a policyholder who is a solicitor to act for themselves under policy terms and to charge her insurers for her time" (13 June 2011 letter); and they asked for another solicitor to be nominated, or they would pass the matter to a panel solicitor (16 June 2011 letter).
- The claim was issued against Gempride, by Falcon Legal, on 20 June 2011.
- Ms Bamrah created a file note on 18 July 2011, to the effect that ARC had refused to authorise Falcon Legal to act in the proceedings; and that "the costs of ATE cover are therefore reasonable and the defendant should be responsible for payment". For the purposes of such insurance, Ms Bamrah rated the risk level for the case at "medium-high 75%". She applied for a policy of after the event legal expenses insurance ("ATE insurance") with ARAG Legal Services that day, obtaining cover of £100,000 plus disbursements for a premium of £2,724.20.
- On 22 June 2012, there was a hearing for directions before District Judge Avis, at which Ms Bamrah was represented by Counsel. By this time, it was clear that Ms Bamrah's expert medical evidence was not going to be accepted by Gempride. As a result, Ms Bamrah recorded that the risk had increased from "medium-high 75%" to "High!! 75%-100%" in a note written on the original risk assessment document prepared immediately prior to the CFA; and, at the hearing, various orders were made in respect of expert evidence. At the hearing, Counsel for Ms Bamrah also agreed to an order for extensive disclosure of documents by her, which she considered was beyond his instructions, unnecessary and disproportionate.
- On 12 August 2012, the claim was transferred by Falcon Legal to another firm of solicitors, David Stinson & Co ("Stinsons"), and the ATE insurance was also transferred. Ms Bamrah entered into a new CFA with Stinsons, with a success fee of 20%. The agreed hourly rate for Mr Stinson – also a sole practitioner – was £217.
- As I have indicated, the substantive claim settled on 12 April 2013, when Ms Bamrah accepted a Part 36 offer of £50,000, on the basis that Gempride would pay her reasonable costs of the claim.
- On 10 June 2013, Ms Bamrah for Falcon Legal instructed the Second Respondent ("Lawlords"), a firm of costs consultants and draftsmen, to draft a bill of costs for the period to 12 August 2012 (when Stinsons were instructed) for assessment. Lawlords are not authorised to conduct litigation, nor to exercise a right of audience, by the CLSB or indeed anyone else (see paragraphs 5-7 above).
- Ms Bamrah had used Lawlords before. In respect of this matter, one of Lawlords' directors (Graham Shaw) supervised one of their draftsman (Lee Ocego) who did most of the drafting etc and appeared at the main hearing before Master Leonard on 13 January 2014. Another Lawlords employee, David Owen, appeared for Ms Bamrah at a directions hearing before the Master on 18 November 2013. Stinsons instructed a different firm of costs draftsmen; and it was agreed that Stinsons would be responsible for coordinating the two parts of the bill (Part 1 being the costs incurred to 12 August 2012 and Part 2 being the costs incurred thereafter).
- With the letter of instruction to Lawlords, Ms Bamrah enclosed the CFA, including the Risk Assessment, and all the BTE insurance correspondence. In the letter, she said, of the 22 June 2012 hearing:
"Unfortunately, [Counsel] went beyond our instructions for case management directions that he was instructed to obtain at the hearing on 22 June 2012. It appears that Counsel unilaterally agreed an order for extensive disclosure of documents that were either not relevant to liability or causation and were clearly disproportionate. Liability had been admitted. Although causation had been partly disputed we feel that the best way to proceed would have been for the experts of like discipline to hold discussions and prepare a joint statement for the court, rather than subjecting the Claimant to unreasonable search of historical records.
Given the defendant's unreasonable behaviour and the type of evidence they required the hourly rate for this claim was increased to £280.00 per hour.
Please note that Ms Bamrah is a sole practitioner and she is also the Claimant in this matter. All work was carried out [by] Ms Bamrah at the hourly rate of £232.00 pursuant to a [CFA] date 10/07/2008. Accordingly please recover all costs incurred in this matter including the maximum success fee."
- There was no contemporary documentary evidence of any agreement to change the hourly rate, although Falcon Legal's computerised time costs system recorded an hourly rate of £232 to about March 2012 and £280 thereafter.
- On 28 June 2013, Lawlords, who were still preparing the draft bill, wrote to Ms Bamrah saying:
"We have ensured whilst preparing the bill that your profit costs have been maximised in order to reflect the level of work undertaken and the defendant's poor conduct."
They said they would send the draft for checking and endorsement shortly.
- Lawlords sent the draft bill to Ms Bamrah by email on 8 July 2013, with a covering letter saying:
"Given the conduct of the defendant and the complexity of this matter in respect of the medical evidence and quantum we have applied a rate of £280.00 per hour throughout and a success fee of 100%".
The draft bill had indeed used an hourly charge rate for Ms Bamrah of £280 throughout Part 1 of the bill. The covering letter asked that, once Ms Bamrah had checked the bill:
"… [P]lease sign the certificate of accuracy and upon return of the signed [bill] we will arrange a copy to be sent to [Stinsons'] costs draftsman]".
- Before Judge Mitchell, it was Ms Bamrah's evidence that she spoke to Mr Shaw the following day. In her statement of 6 March 2015 (but wrongly dated 2014), Ms Bamrah said that, in instructing Lawlords, she had "instructed someone I believe to be an expert, and throughout relied upon Lawlords' expertise" (paragraph 5.3):
"The whole point of my instructing Lawlords, and agreeing to pay them, was so that I could and would rely on their expertise and advice, and they would (as they did from about 10 June 2013) take control of, and responsibility for, conduct of the relevant detailed assessment proceedings, so that I would have to devote minimal time and effort to such proceedings" (paragraph 5.13).
- There was an issue about whether the 9 July 2013 conversation took place at all, a matter about which the judge declined to make any specific finding (see  of his judgment). Mr Shaw had no recollection of the conversation, upon which Ms Bamrah had kept no note and which was not referred to in her email later that same day responding to Mr Shaw's email (see below). Judge Mitchell referred (at paragraph 80 of his judgment) to an email sent by Ms Bamrah to Mr Shaw much later, on 20 December 2013, in which she said: "The charging rate was not applied until much later as the matter became more complex due to the historical fishing of the documents, by the defendant". He continued (at ):
"It is quite clear from the tenor of this email, and indeed other documents that Ms Bamrah was concerned to ensure she was not accused of charging a higher rate than that permitted by the CFA until the date the hourly rate was increased, which she identifies as 22 June 2012. By virtue of the fact that this email was sent we are inclined to the view she did speak to Mr Shaw on or about 9 July 2013 about the rates to be billed, because it was something which concerned her and offended the indemnity principle, of which she was all too well aware. However we entirely agree with Mr Singh's submission that even if the telephone call was not made, it does not affect her position."
I shall return to this conversation when I deal with what I have called Ground C (see paragraph 124 and following below).
- Ms Bamrah sent Mr Shaw an email later that day (9 July 2013), formally responding to his email of the previous day. She said in her email:
"To expedite matters I have attached the signed certificate but this is subject to the revised Bill of Costs as I have the following Queries…".
She had obviously checked the draft bill with some care, and made a number of queries and corrections (including spelling errors), which she set out. At paragraph 4, she noted that "the hourly rate of £280.00 has been applied throughout", but raised a query of why the total solicitor costs had been reduced from the time costs system recorded figure, despite the use of a higher hourly rate for much of the work.
- In respect of the signed certificate she returned, this was in the form of Precedent F of the Schedule of Costs Precedents annexed to CPR PD 47, which is the mandatory form (see paragraph 5.21 of CPR PD 47). The relevant specific certificate, under the heading "Certificate as to Accuracy", read as follows:
"I certify that this bill is both accurate and complete and… in respect of Part 1 of the bill the costs claimed herein do not exceed the costs which the receiving party is required to pay me/my firm."
Ms Bamrah signed that certificate expressly "on behalf of Falcon Legal".
- Lawlords replied to Ms Bamrah's email on 12 July 2013, sending a revised bill of costs, still applying a charging rate of £280 throughout as well as making amendments to deal with the matters raised by Ms Bamrah. As Ms Bamrah appreciated, the amended draft had made all the corrections required as a result of Ms Bamrah's email, with one exception: no change was made to correct the reduction in aggregate time costs, because there was an initial entry on the system of just over £6,000 which Lawlords took to be error. The letter confirmed that the amended bill had been sent to Stinsons' costs draftsmen for incorporation in the bill for lodging and service.
- Ms Bamrah emailed Lawlords on 17 July 2013, saying that the £6,000 figure was not a mistake – it was a carryover from an earlier time cost system – and asking for the bill to be amended "immediately" to include it. The bill was changed accordingly.
- Stinsons put the two parts of the bill together, ready for lodging and service. On 26 July 2013, Mr Shaw sent Stinsons a copy of the CFA by email, but saying that they should not disclose it to Gempride without "coming back to [him]". Mr Stinson confirmed that he would not serve a copy of the CFA with the bill, but "in [his] experience it is almost always asked for in the Points of Dispute".
- By way of explanation, although there was no formal requirement for a copy of the CFA to be served with a bill of costs, it was normally provided because the courts had indicated that it should be "normal practice" for a CFA to be disclosed for the purposes of costs proceedings where a success fee was claimed (Hollins v Russell  EWCA Civ 718;  1 WLR 2487 at ). In any event, CPD rule 32.5(1)(d) read with CPD paragraph 32.7 provided that, if the receiving party sought additional liabilities as well as a base fee, it was required to serve with the notice of detailed assessment:
"… if the conditional fee agreement is not disclosed (and the Court of Appeal has indicated that it should be the usual practice for a conditional fee agreement, redacted where appropriate, to be disclosed for the purpose of costs proceedings in which a success fee is claimed), a statement setting out the following information contained in the conditional fee agreement so as to enable the paying party and the court to determine the level of risk undertaken by the solicitor –
(i) the definition of 'win' and, if applicable, 'lose';
(ii) details of the receiving party's liability to pay costs if that party wins or loses; and
(iii) details of the receiving party's liability to pay costs if that party fails to obtain a judgment more advantageous than a Part 36 offer."
- The formal bill of costs was filed and served that day (26 July 2013). Part 2, which covered the period when Stinsons were instructed (with which this appeal is not concerned), totalled £65,208.33. Part 1, covering the period when Falcon Legal were instructed, totalled £135,878.43, of which £50,498 plus VAT represented profit costs, with a similar amount representing the 100% success fee.
- The profit costs, upon which the success fee was applied, included (as item 112) £4,186 plus VAT, for:
"Time spent considering voluminous files comprehensively, preparing draft Bill in respect of Falcon Legal Solicitor's costs, checking and finalising thereafter. Total time spent – 26 hours at £161.00 per hour.
That was the time spent by Lawlords on drawing the bill of costs, included as an item of profit costs and thus subject to the 100% success fee uplift. Item 111 £420 plus VAT was for:
"Time engaged checking Part 1 of the Bill of Costs, in particular the time spent and disbursements and thereafter signing Certificate of Accuracy. Total time spent – 1 hour 30 minutes."
That was the time spent by Ms Bamrah in checking and then certifying the bill.
- The certificate she had returned to Lawlords on 9 July 2013 was attached to the bill. Although she had not seen the final bill before it was lodged and served, she had in fact seen, and approved, the entire contents of the bill as finally submitted.
- Points of Dispute in relation to the bill were served on 19 August 2013, to which Lawlords prepared draft answers, sent to Ms Bamrah by email on 28 August 2013 "for approval and signature". I need refer to only a few.
- First, Point of Dispute 1 noted that there had been disclosure of neither the CFA itself, nor the alternative of specific information provided for by CPD paragraph 32.5(1)(d). The proposed reply was as follows:
"In accordance with CPD 32.5(1)(d), the Claimant provided a statement of information setting out the definition of 'win' and the Part 36 provision. Compliance has therefore been achieved."
Ms Bamrah approved that response. Therefore, although she had instructed Lawlords that they could disclose the CFA, having read that answer, Ms Bamrah knew or ought to have known that the CFA had not in fact been disclosed to Gempride.
- Second, Point of Dispute 3 was as follows:
"… [T]he receiving party is asked what other methods of financing costs were available other than those involving additional liabilities [i.e. success fee and ATE insurance premium] and why were they not used….
Costs arising from an unreasonable choice should be disallowed."
The same query was raised at Point of Dispute 39 in relation to Part 2 of the bill. The proposed response to each read:
"Mrs Bamrah was fully aware of her obligation to make enquiries into the availability of any pre-existing legal expenses cover and all other methods of funding. BTE legal expenses cover was not available therefore the appropriate method of funding in this case was put in place, a CFA…".
That was clearly a representation that Ms Bamrah did not have BTE insurance available at the time she entered into the CFA. Ms Bamrah approved that response.
- Finally, Point of Dispute 7 was:
"The claimed hourly rates are unreasonably high. They are enhanced rates.
The claimant has not produced material to establish that: (a) the claimant's solicitor is a 'specialist'; (b) the facts and circumstances warranted the instruction of a specialist; and (c) the overheads of the claimant's solicitors exceed the local average….
In addition, the claimant is a Grade A solicitor, and dealt with the matter herself, until [Stinsons] took over conduct.
In default, and because doubt arises on this standard basis assessment, the paying party contends guideline rates should be allowed. A composite Grade A Outer London rate of £241.00 is offered."
The proposed response was:
"The Claimant will accept the rate offered."
Mr Shaw's email to Ms Bamrah covering the draft responses said:
"You will see from the points that the Defendants have attacked various aspects of the costs claimed. The hourly rate of £280 has been objected to and £241ph offered which in the replies I have accepted as I don't believe you will obtain a higher rate on assessment. If you object I can always amend the replies."
In the event, Ms Bamrah raised no objection. She agreed the rate offered, and approved the draft reply.
- On 30 August 2013, having considered the Points of Dispute and the draft replies, she approved all of them, signed the Replies on behalf of Falcon Legal, and returned them to Lawlords who served them on 3 September 2013.
- On 30 September 2013, Stinsons applied for a detailed assessment hearing, which was fixed for 18 November, to be treated as a directions hearing. On 15 November, further Points of Dispute were served, pressing for the success fee to be disallowed because no risk assessment etc had been disclosed.
- At the hearing before Master Leonard on 18 November 2013, Ms Bamrah was represented by Mr Owen of Lawlords, described in the Order that day as "costs lawyer". At the hearing, amongst other things:
i) In the light of the response to Point of Dispute 3, Gempride confirmed that they would not pursue any point on alternative funding.
ii) Lawlords agreed to provide a copy of the CFA and supporting documents, which were in the event sent by Stinsons to Gempride that day.
iii) The Master directed that there should be a hearing of preliminary issues as to the status of Ms Bamrah and the validity of the CFA, fixed for 12 April 2014.
iv) He also directed that any witness evidence relied on by Ms Bamrah in relation to those preliminary issues be served by 14 February 2014, and any evidence relied on by Gempride to be served within a month thereafter.
- Having received and considered the Funding Options Checklist, on 21 November 2013 Gempride's solicitors raised an issue in relation to the reply to Point of Dispute 3: they said that they could not see how the reply "could be said to be anything other than, at best, misleading", so that CPR rule 44.11 may apply. Later, having seen that the hourly rate claimed in the bill (£280) was higher than the hourly rate in the CFA (£232), they raised the issue of the bill breaching the indemnity principle.
- On 18 December 2013, Gempride issued an application seeking (i) to resile from their concession regarding the unavailability of alternative funding, and (ii) an order that Ms Bamrah's claim for costs be dismissed or alternative relief granted under CPR rule 44.11 on the basis of that, in certifying her hourly rate throughout as £280 and replying to the Points of Dispute to the effect that she had no alternative funding, her conduct was "unreasonable or improper" within the meaning of rule 44.11.
- The application was heard by Master Leonard on 13 January 2014. As I have indicated, Ms Bamrah was represented by Mr Ocego of Lawlords. Unfortunately, Ms Bamrah appears not to have been told of the hearing date by Lawlords, and Lawlords did not think fit to lodge any evidence on her behalf or even ask Ms Bamrah if she wished to rely upon any evidence although the Master's Order of 18 November 2013 expressly gave her the opportunity to do so (see paragraph 70(iv) above).
- In a reserved judgment handed down on 5 March 2014, the Master allowed the application on each of the two grounds. In relation to the hourly rate, he noted Mr Ocego's explanation (at  and ) that:
"[Ms Bamrah] took the view that the difficult work undertaken merited a higher rate and decided retrospectively to revise [Falcon Legal's] hourly rates upwards to £280 for the entire period covered by part 1 of the bill…
… [She] had taken the view that the hourly rates agreed between her, as the client, and [Falcon Legal] could be adjusted at will. If that were the case there would be no contractual agreement binding upon [Ms Bamrah] to pay any particular hourly rate, and so no proper basis for the certification of an hourly rate of £280."
- The Master thus found that Ms Bamrah had certified a misleading bill of costs, because, on the most favourable interpretation of her actions, she took the view that the hourly rate payable by her to Falcon Legal was adjustable at will (see ). As a result, Gempride made an offer on hourly rates that, assuming there was a valid contract between Ms Bamrah and Gempride, was higher than Ms Bamrah was obliged to pay, which Ms Bamrah purported to accept (see ).
- In respect of the accuracy of the replies on alternative funding, he noted (at ) that Ms Bamrah was "responsible both as client and as solicitor for the factual accuracy of her replies to [Gempride's] Point of Dispute". He continued:
"49. It is not open to [Ms Bamrah] to record for her own purposes, as she did, that BTE funding was available to her but to tell the paying party, as she did, that it was not. Nor can she say that because it was not available to her on terms acceptable to her, it was not available at all.
50. I am reminded by Ms Scott for [Gempride] that there is no process of disclosure in detailed assessment proceedings. A paying party cannot expect to inspect as of right a receiving party's [CFA] or his records of enquiries as to alternative sources of funding. Unless there is good reason to conclude that replies such as those served by the [receiving party] may be inaccurate the paying party will be expected by the court to accept them.
51. The clear and obvious purpose of an enquiry such as that at general point 3 is (a) to allow a paying party to ascertain whether a receiving party claiming the cost of a CFA and an ATE premium made a choice not to use an alternative, less expensive method of funding and (b) to take a position on whether that choice was reasonable. The equally clear statement in [Ms Bamrah's] reply to general point 3, to the effect that BTE cover was unavailable, was not true and no amount of sophistry can make it true."
- The Master found that Ms Bamrah's answer to the Point of Dispute was untrue; and that, "as a personal injury practitioner she was in a position to understand the significance both of general point 3 and her answer to it" (see ). On the basis of that answer, Gempride had originally conceded that it would pursue no alternative funding point; and it might have settled the claim for costs on the basis of the inaccurate representation before disclosure was ever given (see -). Disclosure was not given for the purpose of correcting the previous misrepresentation (see ). Ms Bamrah had taken active control of the preparation and certification of Part 1 of the bill and replies, and she was directly responsible for the misleading information supplied to Gempride upon which concessions were secured (see ). He concluded (at ):
"If [Ms Bamrah's] conduct admits of a reasonable explanation, in the absence of some evidence from her I have no idea what it might be."
- The Master made no express finding that Ms Bamrah had been dishonest – in relation to either alleged misconduct – although he clearly regarded her conduct as more than "an honest mistake" which is how he characterised Stinsons' conduct in relation to their response to Points of Dispute 39 concerning alternative funding.
- Having found Ms Bamrah's conduct to have been "unreasonable or improper" in these two respects, the Master considered that complete disallowance of her costs would be unduly harsh, but that, if there were any binding contract between Ms Bamrah and Falcon Legal, she had forfeited any right to rely upon it. In the circumstances, he disallowed the claimed profit costs in Part 1 of the bill insofar as they exceed the fixed hourly rate recoverable by litigants-in-person.
- Ms Bamrah appealed. For the appeal, she instructed RadcliffesLeBrasseur. She said that she had not personally known of the hearing before the Master; and that, generally, Lawlords were responsible for the detailed assessment and any errors that may have occurred.
- It was common ground that, as Ms Bamrah had been personally denied the opportunity to file evidence before the Master by Lawlords' failure to discuss the hearing with her, the appeal should be by way of full rehearing; and, at a case management hearing before Judge Mitchell on 16 October 2015, that was directed. The judge also directed that lists of issues for determination be filed and served, which they duly were.
- Also at that hearing, Lawlords applied to be added as a respondent to the appeal. Although they were neither a party to the original claim nor legal representatives for the purposes of the CPR – and so an order under CPR rule 44.11 could not be made against them – there were of course other provisions under which a costs order could be made against them as a non-party, notably the inherent jurisdiction of the court; and in any event it was by this time clear that it was a substantial part of Ms Bamrah's case that Lawlords were responsible for the conduct of the detailed assessment. That was made clear in her statement of 6 March 2015, in which she said this:
"5.6 Lawlords was responsible for, and undertook the task of, preparing the Bill of Costs and all other documents, pleadings, and evidence, required for the detailed assessment proceedings.
5.7 Lawlords was responsible for (and undertook the task of) ensuring that the relevant provisions of the [CPR] were complied with, and any other legal requirements were met, and any duty owed by me/Falcon [Legal] (in the detailed assessment proceedings) to the court or Gempride was discharged.
5.8 Such duties included a duty on Lawlords not to mislead me, Gempride or the court…
5.12 …. Lawlords misled me, Gempride, and the court, and breached its duties, and were guilty of incompetence and negligence, which resulted in the adverse conclusions reached by Master Leonard in his judgment…
5.13 … The whole point of my instructing Lawlords, and agreeing to pay them, was so that I could and would rely on their expertise and advice, and they would (as they did from about 10 June 2013) take control of, and responsibility for, conduct of the relevant detailed assessment proceedings, so that I would have to devote minimal time and effort to such proceedings".
- The appeal was heard by Judge Mitchell, sitting with District Judge Langley as an assessor, over thirteen days between May and September 2016. Mr Singh appeared for Ms Bamrah. Charles Cory-Wright QC and Ms Scott appeared for Gempride.
- During the course of the hearing, an issue arose as to the date of the CFA, as follows. The CFA was provided to Gempride's solicitors (Taylor Rose TTKW) on 5 March 2015. With other documentation, it was reviewed by Stephen Hines, a partner in that firm, on 16-17 March 2015. He noticed that the VAT rate in Part 2 of the CFA was 20%. The VAT rate did not increase to 20% until 4 January 2011. In his statement of 26 May 2016, Mr Hines said (at paragraph 5) that he considered that there might be a number of possible explanations for that discrepancy, one of which was that the two parts of the document had not been prepared at the same time. He clearly suspected that Part 2 of the document might have been prepared after January 2011. However, in his statement, he said (at paragraph 5):
"[T]he document itself did not seem to me to suggest any particular answer to these various questions, or to constitute in itself any evidence of impropriety on the part of Ms Bamrah. I assumed that these questions would be explored and answered at the hearing of the appeal".
- They were raised with Ms Bamrah, for the first time, in cross-examination by Mr Cory-Wright. We have the benefit of a transcript of that part of the hearing. Mr Singh made no objection at the time; but later made submissions to the judge that this was an inappropriate and unfair ambush of Ms Bamrah, and the judge ought not to have allowed the point to have been taken as it was. In the meantime, in her evidence, Ms Bamrah at first said that the VAT percentage figure must have been a mistake; but, on reflection, later explained the discrepancy on the basis that Part 2 of the CFA was a standard form, which she had not printed out at the time but had printed out later, after January 2011. Her computer would have changed the VAT rate in all her documents automatically, as at the date of any rate change.
- Although the reserved judgment handed down on 14 November 2016 ("the main judgment") is written in the first person plural, Judge Mitchell made clear that he understood the respective roles of the assessor and himself (see ). The main judgment was later supplemented by two judgments in respect of consequential matters, handed down on 18 November 2016 and 13 January 2017 respectively. References in this judgment to the judgment of Judge Mitchell are to the main judgment unless otherwise indicated.
- In the course of considering the grounds of appeal before us it will be necessary for me to consider parts of the main judgment in detail. It would however be helpful to make a few initial points on Judge Mitchell's findings, as follows.
i) Contrary to the finding of the Master, the judge found that Ms Bamrah was not responsible for the acts and omissions of Lawlords because, although they were her agents for the purposes of the detailed assessment, they not only failed to act in accordance with her instructions but acted contrary to them (see ).
ii) In respect of the proceedings before the Master, he concluded that there had been "serious procedural or other irregularities", namely that Ms Bamrah was not given an opportunity to file and serve evidence (see , and -).
iii) Judge Mitchell proceeded on the basis that the Master had in effect made findings of dishonesty against Ms Bamrah. The judge's judgment did not expressly consider the concept of dishonesty in any detail; but it predated the Supreme Court judgment in Ivey v Genting Casinos (UK) Limited  UKSC 67;  3 ELR 1212, and therefore perhaps understandably focused on the subjective element, i.e. whether Ms Bamrah had a subjective intention to deceive. He found that Ms Bamrah had not acted dishonestly, in the sense that she had deliberately inflated her hourly rate to a rate to which she knew she was not entitled and/or represented that BTE insurance was not available when she knew that was. That is clear from references throughout the main judgment, but is confirmed in terms at  of the second judgment. The finding concerning Ms Bamrah's lack of dishonesty is not challenged before us, permission to appeal having been refused in respect of that particular ground of challenge.
iv) In respect of the hourly rate, the judge accepted that the certified rate was "unlawful", in the sense that it was more than the rate Ms Bamrah was obliged to pay Falcon Legal and therefore breached the indemnity principle. However, he found that Lawlords had unreasonably misunderstood Ms Bamrah's instructions that the rate was increased "much later" than the CFA as a result of Gempride's requests for disclosure; and Mr Ocego had falsely stated to the Master that she was responsible for the £280 being claimed for the whole period of Part 1 of the bill (see ). Ms Bamrah had therefore made no false representations about the hourly rate to the court or to Gempride, any false representations having been made by Lawlords and quite contrary to their instructions. Indeed, Ms Bamrah "was unaware of what was going on, and [Lawlords] made no efforts to tell her. She was quite literally in the dark" (see ). Judge Mitchell made express findings that Ms Bamrah did not sign the bill with any intent to mislead, and was not dishonest in relation to the rate and certification of the bill (see ). In respect of the hourly rate, there was thus no misconduct within the scope of CPR rule 44.11 (see ).
v) In respect of the allegation that the reply to the Point of Dispute 3 was false, the judge found that (i) the statement that BTE insurance was not available was true and accurate (see -), and (ii) in any event, in making that reply, Ms Bamrah never had any intention to mislead or deceive Gempride or the court (see ).
vi) Thus, Ms Bamrah had not been guilty of any conduct that was "unreasonable or improper" within the scope of CPR rule 44.11.
vii) In relation to the issue arising out of the VAT rate shown in Part 2 of the CFA referred to at paragraphs 84-85 above, Judge Mitchell accepted that this was an "ambush", i.e. it was a case of concealment by Gempride to take Ms Bamrah by surprise which was, the judge said, "since the advent of the CPR… no longer the way litigation is conducted" (see ). However, the judge considered and dealt with the point. He "unhesitatingly" accepted Ms Bamrah's considered explanation as to why the apparent discrepancy had occurred, and so it was a "point without any substance" (see  and ).
- In an Order dated 19 December 2016, Judge Mitchell consequently allowed the appeal and dismissed Gempride's application under CPR rule 44.11. He ordered Gempride to pay Ms Bamrah's costs of the application before the Master and the appeal on an indemnity basis (paragraph 6). Those costs were to include "her personal costs of attendance at the appeal proceedings" (paragraph 7), which was clarified by District Judge Langley on 12 January 2017 to mean "'full lawyer's costs' for her time of attending all the hearings which took place during the appeal proceedings". I understand the costs claimed by Ms Bamrah under paragraph 6 of that order are approximately £950,000.
The Grounds of Appeal
- Gempride sought to appeal to this court on eleven grounds, some of which related to Judge Mitchell's findings of fact. Ground 11, as amended on 15 February 2017, was as follows:
"Generally, in the event the Appellant succeeds in reversing the court's findings, the court will be invited to reverse… the costs order to ensure they follow the event of the outcome of the appeal."
- On 26 July 2017, Jackson LJ gave permission to appeal in these terms:
"Granted on grounds 1, 3, 7, 8 and 10 only.
1. The appellant has a real prospect of success on those five grounds and they raise important points of principle.
2. The judge's findings of fact, in particular his rejection of dishonesty, must stand. The judge was entitled to make those findings and the Court of Appeal will not go behind them."
- In response to a request for clarification in relation to Ground 11, Jackson LJ replied through a letter from the Civil Appeals Office on 7 March 2018 as follows:
"The appellant can ask the court to re-open the costs order, in the event that the appeals [sic] succeeds on any of grounds 1, 3, 7, 8 and 10".
- Rationalising the order of the grounds (and, for convenience, relabelling them), the extant grounds of appeal before us are therefore as follows.
Ground A (originally Ground 8): Agency
The judge erred in finding Ms Bamrah was not liable for the conduct of Lawlords on the conventional principles of agency.
Ground B (originally Ground 1): Dishonesty/Intention to Deceive
The judge erred in proceeding on the basis that, before being satisfied that Ms Bamrah had been guilty of unreasonable or improper conduct for the purposes of CPR rule 44.11, Gempride was required to prove that she had had an intention to deceive the court and/or Gempride.
Ground C (originally Ground 3): Hourly Rate
Given the hourly rate claimed exceeded that which Ms Bamrah was contractually obliged to pay Falcon Legal, the judge erred in finding that there was no unreasonable or improper conduct by Ms Bamrah in certifying the bill of costs.
Ground D (originally Ground 7): Availability of BTE Insurance
The judge erred in finding that there had been no misrepresentation (and thus no unreasonable or improper conduct) by Ms Bamrah with regard to the availability of BTE Insurance.
Ground E (originally Ground 10): Costs of Attendance
The judge erred in ruling that the costs recovered by Ms Bamrah should include "her costs of personal attendance at the appeal hearings".
Ground F (originally Ground 11): Costs Below
The ground is set out above (see paragraph 89).
- In addition, in her Respondent's Notice, Ms Bamrah relied upon additional reasons for upholding Judge Mitchell's order, namely that Gempride's conduct in "ambushing" her over the date of the CFA (see paragraphs 84-85 above) in itself warranted the CPR rule 44.11 application being dismissed.
Ground A: Agency
- Soon after the Master's findings of unreasonable or improper conduct on the part of Ms Bamrah, it became apparent that Ms Bamrah blamed Lawlords for the inclusion of the incorrect hourly rate in the bill. Gempride's case was clear: even if Lawlords may have been blameworthy, Ms Bamrah was responsible both for her own conduct and for the conduct of Lawlords under conventional agency principles.
- Judge Mitchell held that she was not liable as Lawlords' principal because they did not act in accordance with her instructions and indeed acted contrary to those instructions (see ). Mr Bacon submits that that was a fundamental error of law. By the close of his submissions before us, as I understood them, Mr Singh conceded that to have been the case. He was right to do so.
- As expressed by the learned authors of Bowstead and Reynolds on Agency (21st Edition) (2018) at paragraphs 8-010 and 8-011, it is well-established that:
"Where a person, by words or conduct, represents or permits it to be represented that another person has authority to act on his behalf, he is bound by the acts of that other person with respect to anyone dealing with him as an agent on the faith of any such representation, to the same extent as if such other person had the authority that he was represented to have, even though he had no such actual authority.
… Under this doctrine a principal may be bound by the acts of an agent which he has not authorised, and has even forbidden…".
The authorities for that proposition, going back to the early nineteenth century, are set out in footnotes. I need not tarry with them here.
- Lawlords were retained by Falcon Legal as their agents for the purposes of the costs assessment; and, a result of conventional agency principles, Falcon Legal as principal remained liable to third parties outside the agency relationship (such as Gempride) for the conduct of Lawlords, even if Lawlords acted contrary to their instructions. Furthermore, as I have described (see paragraph 25 above) and as was common ground before us, for the purposes of the supervisory jurisdiction of the court, solicitors remain responsible for the conduct of anyone to whom they subcontract work that they (the solicitors) are retained to do, a principle of particular importance where the subcontractor is not a legal representative and so does not himself owe an independent duty to the court.
- There was nothing to suggest that Lawlords' authority to make representations in the costs assessment on behalf of Falcon Legal was in any way curtailed. Third parties were entitled to rely upon representations made by them as if made by Falcon Legal on behalf of Ms Bamrah.
- The application of those conventional agency principles to circumstances such as this – namely, the relationship between independent costs draftsmen and the solicitors who have retained them to do the work on a costs assessment – was considered by this court in Crane v Canons Leisure Centre  EWCA Civ 1352;  1 WLR 2549;  1 Cost LR 132, which concerned the issue of whether, in the context of a CFA, the independent draftsmen's costs were properly profit costs (which would have attracted a success fee uplift) or a disbursement (which would not). The court (May and Hallett LJJ, Maurice Kay LJ dissenting) held that they were profit costs, because, although the solicitors chose to delegate it, the relevant work was "solicitors' work" (i.e. work of a type which the solicitors were retained as solicitors to do) over which the solicitors retained control, supervision and (crucially) responsibility (see - per May LJ, and - per Hallett LJ). Given the statutory scheme (then under the Courts and Legal Services Act 1990), the costs draftsmen could not perform "solicitors' work" (including the conduct of litigation) themselves, as they were not authorised and would be committing a criminal offence if they did so. It was vital for the integrity of the statutory scheme that the solicitors (as a person authorised to conduct litigation) remained responsible for the acts of the costs draftsmen who were not authorised. Indeed, the court found that the ability of the costs draftsmen to appear in court as advocates was founded upon the fiction that they were temporary employees of the solicitors (see  and ). In any event, the corollary of the costs assessment being "solicitors' work" for which the solicitors remained responsible despite the delegation to the independent costs draftsmen was that the fees charged by the solicitors to the client for the costs draftsmen's work were profit costs upon which the success fee uplift attached. That case was determined under the Courts and Legal Services Act 1990, but the same principles apply under the 2007 Act.
- The circumstances of this case are materially the same as those in Crane v Canons Leisure. Falcon Legal, as a firm of solicitors, were of course authorised litigators. Indeed, they were on the court record as acting for Ms Bamrah. Lawlords were not authorised litigators. They were only able to work on the costs assessment as agents of Falcon Legal, and only on the basis that Falcon Legal maintained responsibility for the work that they did. Thus it was that Mr Owen and Mr Ocego appeared before Master Leonard on behalf of – indeed, as "deemed employees" of – Falcon Legal.
- In my view, not only did Judge Mitchell err in holding that Falcon Legal ceased being liable for the acts of their agents Lawlords because Lawlords failed to comply with their instructions and indeed acted contrary to those instructions, but he unfortunately failed properly to grapple at all with the legal relationship between Falcon Legal and Lawlords. He considered the fact that Mr Owen was described as a "costs lawyer" in the preamble to the Order arising out of the 18 November 2013 hearing at which he appeared for Ms Bamrah (see ), and the fact that Mr Shaw and Mr Ocego "were not only holding themselves out as costs draftsmen, but also as costs lawyers" (see ), were important because they gave force to Ms Bamrah's submission that she was reasonably relied upon them for advice in relation to the cost assessment. Of course, they held themselves out as having some experience and expertise in costs matters; but the judge did not make any finding as to whether Lawlords were actually or apparently authorised litigators. Indeed, he does not appear to have considered that issue. In fact, it is common ground that they were not authorised; and there appears to have been no evidence that Lawlords held themselves out as being such.
- Judge Mitchell said that, if Mr Owen had been at the hearing on 13 January 2014, "it simply would have been unarguable to say that [he] was not her 'legal representative'" (see ). That is so; but not because he was a "costs lawyer". He had the ability to conduct the litigation (the costs assessment) only because he was acting as an agent for Falcon Legal, and was able to appear for Ms Bamrah only as a "deemed employee" of that solicitors' firm.
- Although only an extension of the conventional principles of agency into the particular statutory field with which we are concerned, at a time when new business practices mean that solicitors are more frequently subcontracting work out to the unauthorised, it seems to me to be an important matter of principle that solicitors on the record – and other authorised litigators and "legal representatives" for the purposes of the CPR – understand that they remain ultimately responsible for the acts and omissions of those to whom they delegate parts of the conduct of litigation, particularly where those to whom such work is delegated are not authorised. It is only in that way that the supervisory jurisdiction of the court can be effectively maintained. Although an order under CPR rule 44.11 cannot be made against someone who is neither a party nor a legal representative, for the purposes of that rule the conduct of someone who is not an authorised litigator may be attributable to a legal representative on agency principles as explained in the authorities to which I have referred.
- The reverse side of that coin is that, because the solicitor has responsibility for the conduct of those to whom he subcontracts work for which he as a solicitor has been retained, then he is able to charge for that work at an appropriate rate as profit costs (together with any success fee uplift under a CFA) and not simply as a disbursement; as Falcon Legal did in respect of Lawlords' work on the costs assessment in this case (see paragraph 62 above).
- Of course, where a legal representative is found to have been responsible for the conduct of an agent, particularly if not personally guilty of any unreasonable or improper conduct, that may be relevant to sanction. For example, in a particular case the court may consider it is appropriate to disallow all or part of the costs attributable to that agent.
- In any event, for the reasons I have given, I consider that Ground A is made good: the judge did err in law in finding that, if and insofar as they did not comply with her instructions and/or acted contrary to those instructions, Ms Bamrah could not be liable for the conduct of Lawlords by the principles of agency.
Ground B: Dishonesty/Intention to Deceive
- It has been well-established since Ridehalgh that conduct may be "unreasonable or improper" without any finding of dishonesty. Mr Bacon submitted that Judge Mitchell erred in proceeding on the basis that, as a matter of law or at least in the circumstances of this case given the way in which Gempride put its application, Gempride was required to prove that Ms Bamrah was dishonest, i.e. that, in relation to the hourly rate and/or the availability of BTE insurance, she had an intention to deceive Gempride and/or the court.
- In response, Mr Singh emphasised that, at  (with specific reference to Ridehalgh) and  of his judgment, the judge correctly directed himself that, to make a finding that conduct is unreasonable or improper, it is not necessary to establish dishonesty; and, Mr Singh submits, it is inconceivable that he did not follow that direction when considering the allegations made here. It was true that one basis upon which Gempride grounded their application was that Ms Bamrah had been deliberately dishonest in respect of each if these matters – and the judge could not be criticised for referring to and dealing with that submission – but that, he submitted, does not mean that he applied the wrong legal test. Indeed, the judge went further than he was required to do to dismiss Gempride's application (the burden of proof being upon Gempride), because he expressly found that Ms Bamrah was "blameless" (see ), and that she had "proved her innocence in respect of these allegations…" (see ).
- Notwithstanding Mr Singh's submissions, looking at Judge Mitchell's judgment as a whole in the context of the issues before him, I am persuaded that unfortunately he did fall into error as Mr Bacon contends.
- The context is crucial. Although Gempride clearly suspected that Ms Bamrah had been dishonest – and dishonesty was one interpretation of her conduct that it urged on the judge – dishonesty on her part was never an essential element of its allegations. The CPR rule 44.11 application was on its face made on the basis that the representations made by Ms Bamrah were "not true", "misleading" and "at best reckless". Whilst not excluding dishonesty, the application did not suggest that a finding of dishonest was necessary for its own success. Gempride's case on misconduct at the start of the appeal was set out in Mr Cory-Wright's skeleton argument below, especially at paragraphs 87-94. Dishonesty was not mentioned at all. That was consistent with the evidence of Mr Hines who, in his various statements in support of the application, did not suggest that the Gempride colours had been pinned exclusively to the mast of dishonesty. Importantly, Gempride's case at the end of the appeal as set out in Mr Cory-Wright's written closing submissions, particularly at paragraph 4, made clear that Gempride contended that Ms Bamrah knew or should have known that the representations she had made as to hourly rate to which she was entitled and to the availability of BTE insurance were untrue; and that that misconduct was that of Ms Bamrah personally "whether by reason of deliberate act or recklessness (as Gempride maintains)…" (emphasis added) or alternatively she was responsible for the conduct of Lawlords as her agents.
- Mr Singh submitted that Ms Bamrah had put forward an explanation – he submitted, a reasonable explanation – for each representation, which Gempride could not gainsay. Ms Bamrah was entitled to rely on the advice of Lawlords, as experts in costs proceedings and in costs advocacy. It was Mr Singh who submitted below that, on that basis and in the circumstances of this case, unless Gempride could prove an intention to mislead on Mr Bamrah's part, the CPR rule 44.11 application could not succeed. That submission was made in express terms in paragraphs 10.6 and 10.11 of his closing written submissions.
- Reading his judgment as a whole, it seems that Judge Mitchell accepted Mr Singh's submission on this issue. That is clearest at - of his judgment. Having set out the respective submissions of Mr Cory-Wright for Gempride and Mr Singh for Ms Bamrah – and having referred to Clydesdale Bank plc v Workman  EWCA Civ 73, which does not appear me to have been greatly to the point – he continued at , in relation to the hourly rate issue:
"The improper conduct alleged in this case amounted to an allegation by Gempride of dishonesty i.e. Ms Bamrah inflated her hourly rate to a rate to which she knew she was not entitled, thus gaining a substantial financial advantage. This is the sort of conduct Lord Bingham had in mind in Ridehalgh v Horsefield… when he said '… conduct which would ordinarily be held to justify… striking off, suspension from practice, or other serious professional conduct…". The above observations show the importance of proving that the conduct was deliberately misleading and anything else will not suffice…".
- In relation to the hourly rate, that approach is reflected throughout the judgment, e.g. at , where the judge said that Ms Bamrah indicating to Lawlords that the bill was wrongly inflated in any respect "would seem to be completely at odds with the allegation that she wilfully misled the court and Gempride in order to inflate her bill". The judge concluded at -:
"108. We pause there to set out our conclusions on the factual issues concerning the hourly rate. We are quite satisfied that Ms Bamrah did not make any (or any false) representations about the hourly rate to the court or to Gempride about the hourly rate in part 1 of the bill. Any representations that were made, were made by Lawlords and were quite contrary to her instructions. At the very least they failed to clarify their instructions from Ms Bamrah. We have heard 7 days of evidence and we still have no explanation (which could only come from Lawlords) why Lawlords presented a bill which was unlawful and unsustainable. Indeed Ms Bamrah was unaware of what was going on, and they made no effort to tell her. She was quite literally kept in the dark. Further we are quite satisfied that she did not sign the bill with any intent to mislead Gempride, or the court.
109. Although Gempride made allegations of misconduct, they have failed to prove them. We are satisfied that Ms Bamrah has not committed any act which could be described as misconduct, or any act which could be said to be 'improper conduct' within the meaning of Ridehalgh. As we have been at pains to point out, such 'improper conduct' involved an allegation by Gempride that Ms Bamrah was dishonest, in that she tried to claim an inflated hourly rate. As Gempride have manifestly failed to prove that, we agree with Mr Singh that an attempt has been made to water down the allegations. This case was never about "unreasonable conduct" and, for the avoidance of doubt, we are quite satisfied that Ms Bamrah is not guilty of any unreasonable conduct. Indeed, on the evidence, Ms Bamrah has proved her innocence in respect of these allegations…".
- I will return to consider , which I do not find an easy paragraph, in relation to Ground C (see paragraph 118 and following below). However, taken in context, in my view these paragraphs amounted to a clear finding that the allegation that the certifying of the bill of costs with an hourly rate exceeding that to which Falcon Legal were entitled from Ms Bamrah was not unreasonable or improper conduct by Ms Bamrah was not proved because she did not sign the certificate with an intention to mislead Gempride or the court, i.e. she did not do so dishonestly. The same sentiments appear to have been expressed with regard to both issues at -.
- In my view, in approaching the scope of "unreasonable or improper" as he did, the judge did err. He approached the issue on the basis that, if Gempride had not proved that, in making the representations she made, Ms Bamrah did not intend to mislead Gempride itself or the court, then it had necessarily failed to prove that her conduct fell within CPR rule 44.11. That was not the case; because "unreasonable or improper" conduct does not have dishonesty as a necessary ingredient, and Gempride had not restricted its allegations to ones necessarily involving dishonesty on her part. The judge regrettably failed to consider whether Ms Bamrah's conduct, although not dishonest, was nevertheless "unreasonable or improper". That was an error of law.
Ground C: Hourly Rate
- Basing his submissions on the errors of law which he alleged and I have described in Grounds A and B, Mr Bacon submitted that the judge erred in law in finding that, in certifying the bill of costs with an hourly rate that was in excess of the rate for which Ms Bamrah was obliged to pay Falcon Legal, Ms Bamrah was not guilty of "unreasonable or improper" conduct for the purposes of CPR rule 44.11. Relying on cases such as Watt v Thomas  AC 484 and the more recent judgment of Lewison LJ in FAGE UK Limited v Chobani UK Limited  EWCA Civ 5;  CTLC 49 at , Mr Singh submitted that this was essentially a challenge to the judge's findings of fact, including findings he made which involved evaluating and drawing inferences from primary facts, with which this court should be slow to interfere. Post-hearing, he referred us to the judgment of Leggatt LJ (with whom Gloster and Coulson LJJ agreed) in JSC BTA Bank v Ablyazov  EWCA Civ 1176, in which judgment was handed down on 22 May 2018, where at  he re-emphasised the reluctance of appeal courts to interfere with facts involving an evaluation of primary facts as found by the judge.
- However, whilst endorsing the observations of Leggatt LJ in that case, I cannot agree that this ground of appeal is merely a challenge to a finding of fact.
- As I have indicated, I find  of the judgment – and other paragraphs which reflect the same point – difficult to construe. At the heart of the difficulty lies two different interpretations of Ms Bamrah's own evidence.
- Before Judge Mitchell, it was Ms Bamrah's case that she was charging £232 per hour until 22 June 2012 when she increased it to £280 "on the basis of what she perceived as unnecessary requests for disclosure by Gempride's solicitors" (paragraph 55 of his judgment of 4 November 2016). She said that the letter of instruction to Lawlords was intended to convey a prospective change in rate from June 2012. Mr Ocego maintained that he took the letter to mean that Ms Bamrah wanted to charge £280 for the whole of Falcon Legal's part of the bill. Judge Mitchell found that "the letter was saying quite clearly that [Ms Bamrah] had charged £232 per hour pursuant to the CFA and as of 22 June 2012 she had increased her rate [to £280]" (see paragraph 58), and that Mr Ocego's interpretation was "unsupportable" (see paragraph 59). He found that, contrary to Ms Bamrah's instructions, Lawlords (through Mr Ocego) unilaterally took it upon themselves to use the £280 per hour rate throughout, as evidenced by their emailed letter of 8 July 2013 (referred to in paragraph 52 above). Thus, Judge Mitchell said (at  and ):
"…. It is the view of both of us that the letter [of instruction] was saying quite clearly that [Ms Bamrah] charged £232 per hour pursuant to the CFA and as of 22 June 2012 she had increased her rate.
… Ms Bamrah had made it plain in her letter of instruction that she was acting under a CFA with a recorded hourly rate of £232. Why on earth were Lawlords concluding £280 was an appropriate rate when the CFA said otherwise?"
- Having referred to an email from Ms Bamrah to Lawlords on 20 December 2013 (in which she referred to the fact that the higher charging rate "was not applied until much later as the matter became more complex due to the historical fishing of the documents by [Gempride]"), the judge continued (at ):
"It is quite clear from the tenor of this email, and indeed other documents that Ms Bamrah was concerned to ensure she was not accused of charging a higher rate than that permitted by the CFA until the date the hourly rate was increased, which she identifies as 22 June 2012. By virtue of the fact this email was sent we are inclined to the view she did speak to Mr Shaw on or about 9 July 2013 about the rates being billed, because it was something which concerned her and offended the indemnity principle, of which she was all too well aware. However, we entirely agree with Mr Singh's submission that even if the telephone call was not made, it does not affect the position."
- Thus, it seems that the judge found that Ms Bamrah's consistent instructions were for Lawlords to use the rate of £232 until June 2012, but, contrary to those instructions, they used the rate of £280 throughout Part 1 of the bill. When she telephoned Mr Shaw on 9 July 2012, it seems that the judge understood her evidence to be that Mr Shaw understood that the use of £280 from the outset was an error, but he would explain to Gempride the true position (i.e. that the correct rate to June 2012 was £232 and not £280 as shown in the bill itself) during the course of the costs negotiations with them so that they were not misled. Thus, the judge went so far as saying (at  of his judgment) that "Ms Bamrah did not make any (or any false) representations about the hourly rate to the court or to Gempride…".
- However, even if the judge's understanding of the evidence had been correct, in my view Ms Bamrah would clearly have been guilty of improper or unreasonable conduct, most obviously because, when she received Gempride's offer of £241 per hour throughout, she ought to have realised that the error in the bill had not been explained to Gempride who, for the period to June 2012, had offered more than she was contractually liable to pay Falcon Legal. Her acceptance of that offer is incapable of any sensible explanation. Indeed, no competent solicitor would have considered that an explanation of the error could have been given. At least from that point in time, Ms Bamrah ought to have known that the indemnity principle had been compromised, and Gempride misled.
- In his skeleton argument for this court, apparently in line with the findings of the judge, Mr Singh refers to the "error" in the bill and to its explanation. But, in his oral submissions to us as I understood them, Mr Singh said that Judge Mitchell had in fact got the wrong end of the stick so far as Ms Bamrah's evidence was concerned. In her statement dated 6 March 2014, Ms Bamrah said that, on 9 July 2013, as she had various concerns with the bill, she telephoned Mr Shaw.
"11.9 Amongst other things, I specifically said to Mr Shaw that the hourly rate should be split as it was £232.00, then increased to £280.00. Mr Shaw told me not to worry, and that Lawlords would deal with it, and would leave the hourly rate as it was in the bill, but that he/Lawlords would sort this out with Gempride in the negotiations which Lawlords were going to have with Gempride (in an effort to reach settlement).
11.10 I understand from what Mr Shaw said that Lawlords were advising me that it was proper to claim an hourly rate of £280.00 throughout for Part 1 of the Bill of Costs, but that Lawlords would provide an explanation to Gempride which set out the factual position about the hourly rates of £232.00 and £280.00, and which explained that the rate of £280.00 had been applied by Lawlords in July 2013 when preparing the Bill, and which explained the reasons for Lawlords having applied such rate for all of the period in part 1 of the bill (the "explanation").
11.11 Until some time after about 23 February 2014 [i.e. until after Master Leonard's ruling], I believed that Lawlords had provided the explanation to Gempride. The thought that Lawlords would file and serve the Bill of Costs without having provided the explanation, or that Lawlords would mislead Gempride (or the court) never occurred to me until after I received the draft judgment of Master Leonard on or about 23 February 2014."
- That is clear enough; but Ms Bamrah's cross-examination before Judge Mitchell (at page 28 of the 19 May 2016 transcript) put her evidence on the point beyond doubt. Ms Bamrah understood that Part 1 of the bill of costs was going to include an hourly rate for her time of £280 throughout, as Mr Shaw told her on the telephone on 9 July 2013 that it was appropriate and proper to claim that rate throughout – even retrospectively – because of the complexities in the matter. She approved and signed Part 1 of the bill on that basis. But for Mr Shaw's assurance as to the propriety of claiming £280 throughout, she would have insisted that the rate of £232 was used for the first period of the bill to 22 June 2012. She understood that, during the course of negotiations with Gempride, Lawlords would explain, not that the rate claimed for the earlier period was in fact only £232 and the bill was wrong, but rather why the higher rate had been used throughout, i.e. because of the complexity of the case and the Gempride's requirement for especially extensive disclosure.
- Indeed, on her case before Judge Mitchell, it was that understanding that (e.g.) explained why she did not query, but rather accepted, Gempride's offer of a rate in excess of the £232. As I have indicated, in the counterfactual scenario suggested by  of the judgment, it is clear that Ms Bamrah would have known, or ought to have known, that an improper rate had been maintained so far as Gempride was concerned; and it would have been unreasonable or improper conduct on her part to have accepted the rate offered in those circumstances.
- Without making an express finding, Judge Mitchell seems to have been inclined to accept that the 9 July 2013 conversation between Ms Bamrah and Mr Shaw occurred; and, for present purposes, I am prepared to accept in Ms Bamrah's favour that it took place as she recalled it. Ms Bamrah therefore knew that the £280 rate was being submitted to Gempride as an appropriate rate, because she had been advised by Mr Shaw that it was proper to claim it "throughout" including retrospectively. I also of course accept in her favour that, in agreeing to that course, Ms Bamrah was not being dishonest or intending to mislead, as the judge found.
- Nevertheless, I consider her conduct in certifying the bill in these circumstances was unreasonable or improper. She certified Part 1 of the bill of costs as accurate and as complying with the indemnity principle. As emphasised in Bailey (see paragraph 10 above), that certificate was of considerable moment, because Gempride were entitled (and, in the ordinary course of events, bound) to accept the matters certified as being true and accurate. As one would hope, Ms Bamrah was well aware of the indemnity principle – Judge Mitchell made an express finding to that effect (see ). It is therefore not easy to understand how, as a result of her conversation with Mr Shaw, she could sensibly have believed that it was proper retrospectively to increase the hourly rate in the bill. However, we are bound by the finding of fact of the judge that she did genuinely maintain that belief. Nevertheless, in my view, her conduct in allowing Part 1 of the bill to be submitted and then maintained with a rate which she knew was in excess of the contractual rate was at least reckless. The analysis which led her to that conclusion has certainly never been explained. I consider that her conduct permitted no reasonable explanation and, in the light of the indemnity principle, no competent solicitor acting reasonably would have certified Part 1 of the bill of costs in the circumstances in which Ms Bamrah did so. For those reasons, her own conduct was unreasonable or improper for the purposes of CPR rule 44.11
- In any event, for the reasons I have given under Ground A, in respect of the costs assessment, Falcon Legal are responsible for the conduct of Lawlords; and Lawlords conduct as agents of Falcon Legal has to be judged as conduct of a legal representative because it is "solicitors' work".
- In my view, the judge erred in his consideration of the legal position of Lawlords in a number of ways. I have already dealt with the agency issue. He also apparently proceeded on the basis that "the court has power under CPR 44.11 to impose sanctions on Lawlords because it is a party to the appeal", as well as the power to make an order against it under section 51 of the Senior Courts Act 1981 and as a non-party (see ). However, although making findings and harsh comments about Lawlords, he made no express finding that their conduct would have been "unreasonable or improper" had it been the conduct of a legal representative. In my view, it was clearly so, for the reasons I have already given.
- In all the circumstances, on the basis of Ms Bamrah's own case, I consider that in certifying that Part 1 of the bill of costs was "accurate" and that "the costs claimed… do not exceed the costs which the receiving party is required to pay me/my firm" Ms Bamrah's conduct was unreasonable or improper conduct within the scope of CPR rule 44.11.
- I consequently find Ground C made good.
Ground D: Availability of BTE Insurance
- Mr Bacon submitted that the judge erred in finding that the statement made by Ms Bamrah in response to Point of Dispute 3, that BTE insurance was not available to her, was an accurate statement.
- In his skeleton argument, Mr Singh submitted that Gempride could not in practice pursue this ground, because it was dependent upon original Ground 6, which read as follows:
"BTE Insurance Allegation: Error of fact: Contrary to the evidence and the facts, the learned judge erred in finding that BTE insurance had not been available to [Ms Bamrah]".
Ground D (originally Ground 7) was as follows:
"BTE Insurance Allegation: Error of law and/or fact: In the premises the learned judge erred in finding that there had been no misrepresentation as to the BTE position, and (in the circumstances) in failing to find misconduct." (emphasis added).
Mr Singh submitted that the italicised words made clear that, without Ground 6, this ground must fail.
- Mr Singh did not pursue this argument orally; and, in my view, his reticence was warranted. In giving permission to appeal, Jackson LJ clearly intended this ground to have some substance. This ground stands on its own feet: it is a mixed matter of law and fact as to whether the statement that Ms Bamrah did not have BTE insurance available was true.
- The judge proceeded on the basis that, in this context, where an actual or proposed litigant has BTE insurance but chooses not to use it because the firm that he wishes to instruct will only do so upon terms that the policy does not cover, it can properly be said that BTE insurance is "not available" to that litigant. I am persuaded that the judge erred in finding that the statement was accurate on this basis.
- The question posed to Ms Bamrah in Point of Dispute 3, as to what other methods of financing costs were available without incurring additional liabilities, is a common question posed in detailed assessments where additional liabilities are claimed; and for obvious reasons. Where such alternative funding was available, but not taken up, that gives rise to the issue of whether the litigant acted reasonably in funding the litigation with prospective additional liabilities. That secondary issue is one which, again for obvious reasons, the paying party may wish to investigate with some care; but of course that question is not reached if alternative funding was not available. The receiving party cannot exclude the possibility of that investigation by himself assessing that he had acted reasonably in not choosing to fund the litigation by that alternative means. With respect to the judge, I do not consider that it is reasonably arguable that "availability" in this context can be construed differently.
- In any event, in this case, Ms Bamrah appears to have known full well what "availability" meant, because in the Funding Options Checklist which she completed at the outset of the CFA, in response to the question, "Is any 'other funder' available?", Ms Bamrah responded, "Yes", clearly a reference to the BTE insurance with ARC; and, in response to the follow up question, "If yes why has it not been used", she said, "Refuse to fund until proceedings issued". To the question, "Is a Before the Event Legal Expenses Insurance policy available?", she responded, "Yes", but indicating that permission to use it had been requested but refused.
- Nor do I consider the fact that on 11 June 2011 Falcon Legal wrote to AXA referring to pursuit of legal expense insurers (see paragraph 40 above) to the point. That letter does not deal unambiguously with the question of availability of insurance; but, in any event, it is clear that, whatever they had gleaned from that correspondence over two years previously, Gempride was misled by the response to Point of Dispute 3 because as a result of it they agreed not to pursue any point about the availability of alternative funding – which they immediately sought to retract when they were told that such an alternative had been available.
- I again of course accept the judge's finding that, in making that response to the Points of Dispute, Ms Bamrah did not intend deliberately to mislead Gempride or the court; but as I have indicated there is the clearest evidence that Gempride was in fact misled. It was almost inevitable that it would be. As the Master commented, although the position was rectified when the CFA documents were later disclosed, costs could have been compromised on the basis that there was no alternative funding available without Gempride being any the wiser.
- I find this ground also made good.
Ground E: Costs of Attendance
- Mr Bacon submits that paragraph 7 of Judge Mitchell's Order of 19 December 2016 is wrong in law, in that it ordered Gempride to pay Ms Bamrah her costs of personal attendance as a party to the appeal at the appeal hearing below. As she by then had other solicitors representing her, he submits that such costs are not recoverable.
- Mr Singh had no submission to make on the merits of this ground. He accepted that there was no authority in favour of a party to an appeal being able to recover the costs of his attendance at the hearing of that appeal; and, as I understood him, he accepted the well-established principle that a party cannot recover the costs of his own attendance at a hearing. However, he submitted that this court should not consider the ground of appeal, because the judge gave overt permission to apply in his Order of 19 December 2016, and the appropriate course would be for Gempride to apply to the county court to amend the order to exclude that part of paragraph 7, if it can be shown that it is wrong in principle.
- However, Jackson LJ gave permission to appeal on this ground, and I do not consider that it would be appropriate or proportionate to send this issue back to the county court for further consideration. This matter has gone on for quite long enough.
- In my judgment, there is no answer to this ground. Mr Singh suggested none. Ms Bamrah had solicitors on the record. She was represented in court by Leading Counsel, as well as those solicitors. She attended the appeal as a party, not as a legal representative. In those circumstances, the fact that she is a lawyer does not entitle her to claim her costs of attendance, let alone to do so at her own professional rate.
- I would allow the appeal on this ground.
Ground F: Costs Below
- As I have indicated, in paragraph 6 of his Order of 19 December 2017, Judge Mitchell ordered Gempride to pay the costs of the appeal before him and half of the costs of the appeal below. The costs claimed by Ms Bamrah under that order are apparently just short of £1m.
- In the usual case, if and insofar as an appellant is successful in an appeal, consequential orders are made in relation to costs including the costs below. Unless a specific point is taken in relation to costs, it is not necessary to plead a specific ground of appeal in relation to costs.
- In this case, although (subject to Ground E above) they only asked for the costs order below to be reconsidered as a consequence of any success it might have in respect of the substantive grounds of appeal, Gempride put that forward in a distinct ground of appeal, Ground 11 (set out above: see paragraph 89).
- Jackson LJ granted permission to appeal on identified grounds, which did not include Ground 11, and expressly dismissed the appeal on the other grounds. Relying upon authorities including the recent judgment of this court in R (Goring-on-Thames Parish Council v South Oxfordshire District Council  EWCA Civ 860, Mr Singh submitted that, in these circumstances, this court has no jurisdiction to revisit the refusal of permission to appeal and no jurisdiction to vary the costs order below. In particular, he submitted that the court should not exercise its powers under CPR rule 52.30 to reopen the appeal in relation to that ground.
- I am entirely unmoved by these submissions. Without any express ground of appeal, this court has jurisdiction to make orders consequential upon the result of the substantive appeal, including orders in relation to the costs of the appeal and the costs below. We have jurisdiction to do so in this case. It is clear from Jackson LJ's clarification of 7 March 2018 that he did not intend to exclude that jurisdiction, and indeed he confirmed that it would be open to Gempride to seek a consequential variation of the costs order below dependent upon the outcome of the substantive grounds of appeal. There is therefore no need for this court to have recourse to CPR rule 52.30.
- Were that recourse necessary, I would have had no hesitation in restoring Ground 11 on the basis that (i) it is necessary to do so to avoid real injustice; (ii) the circumstances are exceptional and make it appropriate to reopen the appeal; (iii) there is no alternative remedy; and (iv) the court in its discretion should allow Gempride to argue for a consequential variation of the costs order below on the basis of the success it has achieved in this court.
- However, for the reasons I have given, without any amendment to the formal grounds of appeal, I would allow Gempride to seek a consequential variation of the costs order below.
The Respondent's Notice
- In the Respondent's Notice, it is submitted on Ms Bamrah's behalf that, irrespective of the merits of Gempride's grounds of appeal, Judge Mitchell's order to dismiss the CPR rule 44.l1 application should be upheld on the ground that Gempride, its solicitor (Mr Hines) and its Leading Counsel (Mr Cory-Wright) deliberately misled Ms Bamrah and the court below by concealing the fact that one of the issues in dispute (or not agreed) which it wished to raise was the date on which the CFA was made, i.e. the "ambush" to which I have referred above (see paragraphs 84-85).
- The judge dealt with this issue at  and following in his judgment. He referred to a submission from Mr Cory-Wright that the CFA must have been concluded after 4 January 2011 because of the VAT rate set out in it (see ). Mr Cory-Wright had explained that it was not until he had started to cross-examine Ms Bamrah about Part 2 of the CFA that he was able to justify raising the date of the CFA as an issue (see ); but, the judge concluded, this was an "ambush" and the point had been pursued in a way outside the spirit of the CPR (see ). However, the judge said he had dealt with the point to avoid a cloud hanging over Ms Bamrah about the possibility of this further potential misconduct (see -). He "unhesitatingly" accepted Ms Bamrah's evidence that her computer would have updated the VAT automatically in all her documents in January 2011 (see ).
- It is noteworthy that Judge Mitchell, who made robust findings in relation to conduct which he considered to have been particularly inappropriate, did not greatly criticise the manner in which this point had been taken by Gempride. Indeed, I have some sympathy for Mr Cory-Wright and those instructing him. Any further allegation of dishonesty on the part of Ms Bamrah would undoubtedly have been met with a vigorous and perhaps ferocious response; and they were not satisfied that, on the basis of the evidence they had before cross-examination, they could properly allege dishonesty against Ms Bamrah in this regard. Even if they may have made an error of professional judgment – as Judge Mitchell apparently considered it to be – in my view the allegation in the Respondent's Notice that Gempride and their legal representatives were "deliberately dishonest" goes substantially too far.
- In any event, any such error of judgment is unrelated to, and does not significantly detract from, any misconduct for which Ms Bamrah was responsible. It was, if anything, no more than a marginal error of judgment. The ambush may have led to Ms Bamrah being momentarily discomforted; but she quickly gave an explanation for the curious VAT rate which the judge accepted. The prejudice to Ms Bamrah was itself marginal, and it seems to me to have been restricted to the additional time and effort in dealing with the point without notice. However, the issue took very little time, of the thirteen days spent in court.
- Whilst in exercising its general discretion as to costs under CPR rule 44.2, the court is bound to take into account the conduct of the parties (see CPR rule 44.1(4)(a) and (5)) – and, having regard to the outcome of that issue, this is conduct that may possibly warrant some modest reflection in the costs order made – I do not consider that it is such as to result in any eradication or even diminution of any order that would otherwise be appropriate against Ms Bamrah under CPR rule 44.11.
Conclusion and Disposal
- For those reasons, I would allow this appeal.
- In those circumstances, each party urged us not to remit the matter, but to make an appropriate order under CPR rule 44.11 ourselves. Given the history of this matter, I agree that that is the appropriate course.
- Although we must proceed on the basis that Ms Bamrah was at no time dishonest, and the misconduct did not in the event result in costs being determined or settled on a false basis, in my view her conduct was serious even within the parameters of "unreasonable and improper". As this court made clear in Bailey (see paragraph 10 above), a solicitor as a legal representative holds a particular position of trust; and, on the basis of that trust, when a solicitor signs a bill of costs, he certifies that the contents of the bill (including the hourly rates due from the client) are correct. The court and the receiving party are entitled to rely upon that certificate; indeed, unless there are circumstances such as to raise suspicion, the paying party cannot go behind the certificate. It is bound to accept it. In this case, although not doing so with any intention to deceive, in certifying Part 2 of the bill, Ms Bamrah certified an inaccurate bill with essential recklessness – appreciating the indemnity principle, but being persuaded by Lawlords on some unexplained basis that a retrospective increase in the claimed rate did not breach it – which led to Gempride offering to settle at an hourly rate higher than that which Ms Bamrah was obliged to pay Falcon Legal.
- With regard to the representation concerning the availability of BTE insurance, although made without any intention to deceive, the misrepresentation did mislead Gempride into initially conceding the availability of alternative funding as an issue. Again, Gempride made that concession because it was entitled – and, in effect, bound – to accept the representation made by Falcon Legal on trust.
- In the circumstances, I am in no doubt that the court should make an order under CPR rule 44.11, reducing the level of costs recoverable by Ms Bamrah in the personal injury action. Of course, those costs will in any event now be significantly reduced because of Ms Bamrah's acceptance that the CFA was invalid: she will presumably not be able to recover any additional liabilities (such as the success uplift, or ATE insurance premium), and her claim will in effect be restricted to a quantum meruit. I leave aside all of those factors, which will be dealt with, if not by agreement, on the detailed assessment of costs.
- I have carefully considered whether it would be appropriate to maintain the Master's order, that Ms Bamrah be prevented from recovering profit costs at any rate greater than the rate appropriate to a litigant-in-person. However, in all the circumstances (and notably in the light of the express finding below that Ms Bamrah was not dishonest), I consider that such an order would be disproportionate. In my view, it would do justice to the case if the half the profit costs in Part 1 of the bill as otherwise assessed by the court be disallowed under CPR rule 44.11.
- Therefore, subject to my Lord, Davis LJ, I would allow the appeal. I would quash the Order of Judge Mitchell dated 19 December 2016; and I would vary paragraph 2 of the Order of Master Leonard dated 5 March 2014 by deleting the first sentence thereof and replacing it with the following:
"Half of the profit costs that would otherwise be payable in Part 1 of the Claimant's bill of costs shall be disallowed under CPR rule 44.11".
- In his judgment, Judge Mitchell was particularly critical of Master Leonard for proceeding with the CPR rule 44.11 application without evidence from Ms Bamrah. He may have had in mind the general requirement to allow an individual an appropriate opportunity to respond to any case against him; or the observation of Sir Thomas Bingham in Ridehalgh to the effect that in wasted costs applications "a solicitor against whom a claim [for wasted costs] is made must have a full opportunity of rebutting the complaint" (see page 229D); or the particular requirement of CPR PD 44 paragraph 11.1 which provides that, before making an order against a legal representative under rule 44.11, the court must give the representative a reasonable opportunity to make written submissions or, if the representative so desires, to attend a hearing.
- In any event, in my respectful view such criticism was unjustified. In his directions of 18 November 2013, the Master expressly gave Ms Bamrah the opportunity to file and serve evidence. For the reasons I have given, the Master was entitled to proceed on the basis that Lawlords would consider with Ms Bamrah whether any evidence was appropriate; and, Lawlords not seeking any adjournment or further time to prepare and file evidence, he was entitled to go ahead with the 13 January 2014 hearing on the basis that Ms Bamrah, having been given a proper opportunity, did not wish to rely upon any evidence in defending the application.
- Of course, the judge has a flexible discretion as to how to proceed with a CPR rule 44.11 application; but, in the parallel wasted costs jurisdiction, it has long been emphasised that it is a summary jurisdiction that is only sensible and appropriate in cases where the scope of the application is narrow and clear, and may not be appropriate where there are allegations of dishonesty or breach of professional rules (see, e.g., Turner Page v Torres Design cited at paragraph 20 above, and Regent Leisuretime Limited v Skerrett  EWCA Civ 1032). In Ridehalgh at page 238G-H, Sir Thomas Bingham said that the procedure must be "as simple and summary as fairness permits", words which are reflected in CPR PD 46 paragraph 5.6 which requires the procedure to be "fair and as simple and summary as circumstances permit".
- It seems to me that those observations are equally applicable to the CPR rule 44.11 jurisdiction. I appreciate that the competence and even integrity of a legal representative may be brought into issue in such an application – but that is equally the case in wasted costs applications. It is noteworthy that, in similar terms to CPR rule 46.8(2) which applies to wasted costs applications, CPR PD 44 paragraph 11.1 provides that the court must give the relevant legal representative no more than an opportunity to make written submissions or, if the representative so desires, to attend a hearing.
- The substantive hearing of this application took thirteen days before Judge Mitchell with a District Judge assessor, and Ms Bamrah is claiming nearly £1m of legal costs for the CPR rule 44.11 proceedings before the Master (as to half of the costs only) and then the judge. I find that a matter of considerable concern. It is essential that the courts ensure that the approach to such applications – as well as any sanction imposed under rule 44.11(2) – is reasonable and proportionate.
Lord Justice Davis:
- I also would allow the appeal for the reasons given in the comprehensive judgment of Hickinbottom LJ, with which I entirely agree.
- I add some observations of my own, however, not least because of the scale of these costs proceedings.
- The original claim, a tripping claim, was settled for a sum of £50,000 (albeit at one stage £900,000 had been claimed). Thereafter the focus shifted to the quantification of the costs of the proceedings payable by Gempride. Thereafter again, it is difficult not to conclude that the focus has in reality since further shifted to the costs of the costs proceedings. At all events, it is very regrettable that the hearing below developed into a hearing taking up some thirteen days of court time. The costs of each side are said to run into many hundreds of thousands of pounds. Given the nature of the original claim, as compromised, this protracted costs litigation has been unfortunate in the extreme. But there it is.
- Mr Singh understandably emphasised that no challenge to the primary findings of fact is available to Gempride. He also pressed on us the advantages the judge had in conducting the trial and evaluating the evidence: in the context, moreover, of a case on a matter of costs where the court's jurisdiction is pre-eminently an essentially discretionary and evaluative jurisdiction. He carefully took us through the relevant authorities indicating the relatively limited circumstances in which an appellate court is entitled to interfere in circumstances such as these.
- In the present case, however, with all respect to the judge, I am in no doubt that the judge in a number of ways adopted a wrong approach as a matter of principle; and, having done so, he ended up with a conclusion that was plainly wrong. That being so, this court is not only entitled to interfere: it should interfere.
- Although the judge towards the beginning of his judgment (at ) recited the principles set out in the case of Bailey and although later (at ) he said that the accepted that there was no need for the alleged misconduct under CPR rule 44.11 to be dishonest, he thereafter, as I see it, failed to give any proper application of those principles to the case in hand.
- In this regard, it is evident from his judgment, read as a whole, that the judge had been persuaded into error in taking it that, in the circumstances of this particular case, the improper conduct alleged must amount to dishonesty; and that, once it was concluded that there was no dishonesty, it followed that there was no impropriety for the purposes of the rule. But that reflects neither the true scope of the rule nor the nature of Gempride's own case, which by no means rested solely on dishonesty.
- In this respect, moreover, the judge clearly was wrong in principle (as explained by Hickinbottom LJ) in effect to disassociate Ms Bamrah from responsibility under CPR rule 44.11 by reason of the conduct of Lawlords. The judge clearly misunderstood and misapplied the law on ostensible authority in this regard. (Contrary to a suggestion made at one stage in argument, whether or not Lawlords had been made party to the proceedings by this stage is irrelevant for this purpose.) This error then, as I see it, infected the judge's whole approach to certification and to the indemnity principle.
- It may be (as Ms Bamrah had been concerned to emphasise in her witness statement) that Ms Bamrah relied entirely on Lawlords for costs advice and assistance. But she was the solicitor who signed the certificate. It was on her certificate – the certificate of an officer of the court – that the paying party and the court itself would rely. The paying party and court would have no way of knowing of any deficiencies in the advice she may have been receiving: and she had (with regard to the paying party and court) to bear responsibility for the signed Bill: a Bill she in fact had herself spent one and a half hours in considering. She cannot entirely disassociate herself (vis-à-vis the paying party and court) from responsibility for her certificate by seeking to cast all the blame on her costs draftsmen. Indeed to adopt such an approach would, in my opinion, represent an unfortunate erosion of the underpinning rationale for a signed certificate in a Bill.
- Mr Singh pointed out that there was evidence that – as here – solicitors did sometimes sign off certificates to Bills before they were finalised. Maybe that is so. But such a practice will usually be unwise; and in any event it cannot derogate from the ultimate responsibility for the signed Bill as served. Besides, it is absolutely plain on the evidence that thereafter Ms Bamrah knew that an hourly rate of £280 throughout had continued to be claimed (and indeed an offer of £241 per hour was thereby procured). This, overall, in my view, was in truth a serious case of breach of the indemnity principle, even though (as found) there was no dishonesty on her part. It plainly amounted to improper and unreasonable conduct for the purpose of the Rule.
- It is true that in the rather confused paragraph 109 of his judgment the judge did, ostensibly, deal with the alternative scenario of whether her conduct was "unreasonable", once the allegation of improper conduct (in the sense of dishonest conduct) was rejected. But it is evident that the judge had misunderstood Gempride's case on this: for it is simply wrong to say that the case was "never about unreasonable conduct". Besides, the cursory and unreasoned conclusion that she was "not guilty" of unreasonable conduct cannot accord with the circumstances of the case: indeed the language here used and in the following sentence ("has proved her innocence") indicates that the judge's thinking still was wholly dominated by considerations of dishonest misconduct.
- On the issue of BTE insurance, it is of note that the Answer given, as signed off by her, of "Not available" did in fact mislead. That Answer, moreover, was completely contrary to the answer she had herself previously given internally in the Funding Options Checklist. As found, she had not intended deliberately to mislead. So be it. But such an answer at the least was "calculated" to mislead (cf. paragraph 11.2 of CPR PD 44). The Answer clearly in its effect operated to mask the actuality. The judge's conclusion that the answer given was "accurate" is completely untenable. BTE funding demonstrably had been available. The fact that Ms Bamrah, for her own reasons, had then chosen not to avail herself of it cannot rebut that point. This Answer, in my opinion, unquestionably was improper or unreasonable, within the meaning of the Rule.
- As to Ground E, in common with Hickinbottom LJ, I can see no proper basis for awarding Ms Bamrah her own costs of attendance at the hearing. She attended as client, not solicitor. There could not be, in effect, double recovery of solicitors' attendance costs.
- As to the costs point constituting the original Ground 11, it is clear that Jackson LJ had both the power and the entitlement to correct his previous order in this regard: as does this court. It would be a monstrous injustice not to do so, in the circumstances.
- The points raised in the Respondent's Notice also cannot avail Ms Bamrah. First, no formal objection was raised by Mr Singh at the time to the line of questioning being developed by Mr Cory-Wright. Second, the judge did not intervene to stop it altogether. Third, and not least, it had no causative impact on the outcome: since the judge accepted Ms Bamrah's explanation and accepted that there had been no dishonesty or backdating. But in any event I totally reject the argument that there had been any misconduct on the part of Mr Cory-Wright or that Mr Hines' statements had been deliberately misleading. They were entitled to the view that this was not an issue, as such, to be identified prior to the hearing: whatever their (very understandable) suspicions as to the true dating of the CFA. I am not sure there was any error or fault at all in their approach. But even if there was then it was an entirely venial error of professional judgment. There was, I conclude, no professional misconduct or deception on their part.
- I have to say that I found the judge's remarks on this aspect to be very high-minded: in a way perhaps also reflected in his strong criticisms of Master Leonard. In fairness to Master Leonard, I should state that I too consider those criticisms of him to have been misplaced. The Master had by his previous order given Ms Bamrah the chance to put in evidence. In a case crying out for explanation, Ms Bamrah at that stage gave none. It is now known that she apparently did not even know of the hearing and had not been advised of the need to put in evidence. Further, Mr Ocego declined an adjournment of the hearing; and what he then said, purportedly on instructions, at the hearing if anything made matters even worse. But Master Leonard could not know any of this. In such circumstances, I consider it entirely unsurprising that he both proceeded with the hearing as he did and reached the conclusion that he did, on the materials then before him.
- In the result, therefore, I agree that the appeal should be allowed. I also agree that, in the circumstances of this particular case, the appropriate sanction to be applied should mean that Ms Bamrah should recover one-half of her profit costs (as to be assessed) under Part 1 of the Bill: the other half of such profit costs are to be disallowed.