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England and Wales High Court (Senior Courts Costs Office) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Senior Courts Costs Office) Decisions >> Tilby v Perfect Pizza Ltd. [2002] EWHC 9003 (Costs) (28 February 2002) URL: https://www.bailii.org/ew/cases/EWHC/Costs/2002/9003.html Cite as: [2002] EWHC 9003 (Costs) |
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FROM THE MACCLESFIELD COUNTY COURT
Cliffords Inn Fetter Lane London EC4A 1DQ |
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B e f o r e :
KAREN JENNIFER TILBY
- and -
PERFECT PIZZA LTD
Mr Marc Willems (instructed by Amelans for the Claimant)
Mr Robert McGinty (instructed by Rollingsons for the Defendant)
JUDGMENT
____________________
KAREN JENNIFER ![]() ![]() |
Claimant |
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- and - |
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Defendants |
____________________
____________________
Crown Copyright ©
Senior Costs Judge : Hurst
THE BACKGROUND
THE CFA AND ATE INSURANCE POLICY
"What is covered by the agreement
· your claim against Mr Wesley Gregory for damages for personal injuries suffered on 22/04/2000
· any appeal by your opponent.
· any appeal you make against an interim order during the proceedings.
· any proceedings you take to enforce a judgment, order or agreement."
"(o) Win: your claim for damages if finally decided in your favour whether by a court decision or an agreement to pay damages. "Finally" means that your opponent:
· is not allowed to appeal against the court decision; or
· has not appealed in time; or
· has lost any appeal."
"4. If you win:
· You are then liable to pay all our basic charges and success fee ...
· normally you will be able to recover part or all of our basic charges, success fee and disbursements from your opponent;
· if you and your opponent cannot agree the amount, the court will decide how much you can recover. If the amount agreed or allowed by the court does not cover all our basic charges and disbursements you pay the difference.
· If the court carries out an assessment of our charges you agree that the reasons for setting the success fee at the amount stated may be disclosed to the court and any other person required by the court;
· If the court carries out an assessment and the court disallows any amount of the success fee the percentage (sic) on the ground that it is unreasonable in view of what we knew or ought to have known at the time, that amount ceases to be payable under this agreement unless the court is satisfied that it should continue to be payable.
...."
"We can end this agreement if you do not pay your insurance premium when asked to do so."
"... the insurers will indemnify the insured on the terms contained in this certificate of insurance."
The Schedule to the certificate defines the legal action as "personal injury claim againstPerfect Pizza
Limited" and the period of insurance "from: 01/06/00 to: the conclusion of the legal action".
"Fees and expenses including the premium and mediators fees, which are not the subject of any contingent or conditional fee agreement paid by the Appointed Legal Representative on behalf of the Insured to any third party other than to counsel in connection with the Legal Action but not including:
(1) any VAT to the extent that the Insured can recover such VAT from HM Customs & Excise; and
(2) any disbursements which the Court orders the Opponent to pay to the Insured."
"5. Payment of costs
(a) Insurers shall not be liable to make any payment under the certificate until the conclusion of the Legal Action, unless the Court shall have ordered the Insured to pay any Opponent's costs before that date.
(b) The Insured will promptly provide Insurers with full details of Disbursements and Opponent's Costs and shall, if requested by the Insurers, have such Opponent's Costs and/or Disbursements assessed or otherwise reviewed by an appropriate body. Insurers will be entitled to conduct any assessment or review and the Insured will provide such assistance as Insurers require.
6. Assessment of premium
If, in any process of assessment, the Opponent is successful in any challenge to the cost of the premium then it is agreed that the premium which was payable at the conclusion of the Legal Action shall be reduced to the amount which was approved or allowed on assessment. It is agreed by the Insured that the Insurer shall have the right to make any representations to the Court or the Opponent as may be necessary in this matter. Any such challenge must be immediately notified by the Insured to the Insurer. "
"Payment to be made upon conclusion of the case."
THE ISSUE
"The client has not paid the insurance premium as the same only becomes payable when the insured risk arises. Since the insured risk only arose after the matter had been settled and at that point your client became liable for the premium the client has not been liable to pay the same."
THE LAW
"8. Consumer Credit Agreement
(1) A personal credit agreement is an agreement between an individual ("the debtor") and any other person ("the creditor") by which the creditor provides the debtor with credit of any amount.
(2) A consumer credit agreement is a personal credit agreement by which the creditor provides the debtor with credit not exceeding £25,000.
(3) A consumer credit agreement is a regulated agreement within the meaning of the Act, if it is not an agreement ("an exempt agreement") classified in or under Section 16."
"A cash loan, and any other form of financial accommodation."
"An agreement for fixed sum credit under which the total number of payments to be made by the debtor does not exceed four and those payments are required to be made within a period of 12 months beginning with the date of the agreement."
"(a) the supply of a benefit;
(b) attracting a contractual duty of payment;
(c) in money;
(d) the duty to pay being contractually deferred;
(e) for a significant period of time after payment has been earned;
(f) such deferment being granted by way of financial accommodation."
(paragraph 24.8, page IC/494)
"debt is deferred, and credit extended, whenever contract provides for the debtor to pay, or gives him the option to pay, later than the time at which payment would otherwise have been earned under the express or implied terms of the contract."
"... we must use some common sense and treat a debt as deferred only where the contractual period of deferment is significant, that is, where payment is not to be made on the same occasion (in a broad sense) as that of the purchase to which it relates."
"The lessor would allow the hirer credit on the hire charges until such time as the claim for damages had been concluded."
THE DEFENDANT'S SUBMISSIONS
CLAIMANT'S SUBMISSIONS
"... if the recipient of the benefit has no duty to pay for it, then he is not a debtor and it cannot be said that credit is being extended to him."
CONCLUSIONS
"... the premium ... which was payable at the conclusion of the Legal Action shall be reduced ... (emphasis is added)."
This, argues Mr McGinty, indicates that the legal action has been concluded, the premium has become due and payable and the Claimant has therefore been granted a significant period of deferment thereby bringing the agreement within the ambit of the Consumer Credit Act. I do not accept this submission, which is essentially based on a poorly drafted phrase in the policy. In my judgment the words "which was" are mere surplusage and should be ignored. What was intended by the policy and by the draftsman in drafting Clause 6 in the way he did was to refer to:
"...the premium payable at the conclusion of the legal action ..."
At most the words "which was" draw attention to the change in premium only; they do not indicate any passage of time after the time for payment of the premium.
PTH\26\Tilby v Perfect Pizza