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You are here: BAILII >> Databases >> England and Wales High Court (Senior Courts Costs Office) Decisions >> Metcalfe v Clipston [2004] EWHC 9005 (Costs) (06 April 2004) URL: https://www.bailii.org/ew/cases/EWHC/Costs/2004/9005.html Cite as: [2004] EWHC 9005 (Costs) |
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SCCO Ref: 03/108/716 Application Nos. 03/P8/716 & 04/A/041 |
SUPREME COURT COSTS OFFICE
Fetter Lane, London, EC4A 1DQ |
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B e f o r e :
____________________
JON ![]() ![]() |
Claimant |
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- and - |
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RODNEY ![]() ![]() |
Defendant |
____________________
Miss Ward (instructed by Winckworth Sherwood) for the Defendant
Hearing date : 6 February 2004
____________________
Crown Copyright ©
Master Campbell
i. Is the Claimant barred from recovering a success fee due to the failure to notify the Defendant of the funding arrangement.
ii. Should the Claimant be given relief from Court sanctions arising from his breach of CPR 44.15?
iii. If so, is 90% an appropriate success fee to allow?
THE BACKGROUND
"The dental adviser regrets that he has to conclude that a reasonable practice would not have left a patient in this situation and that from the information made available to him it would appear that there was a lack of care in the treatment of this patient by dentist A. "
"We do not wish to submit evidence or argument in support of our member and concentrate instead on identifying the nature of the injury and likely consequences … "
The letter continued:
"We are prepared to make an offer of £12,000 in full and final settlement of your client's claim against our member, inclusive of general damages and interest to date. We are also prepared to pay your reasonable costs relating to this claim incurred up to 21 days from the date of this letter, without prejudice to our right to challenge the validity of any conditional fee agreement, the reasonableness of the percentage uplift and any ATE insurance. "
"We have already advised you that the Claimant does not have the benefit of a before the event insurance policy and has not yet sought to obtain an ATE policy. You will appreciate that if this claim cannot be resolved prior to the issue of proceedings then we will have no alternative other than to advise the claimant that it is essential that such a policy is obtained to protect him against the risk of an adverse costs order. "
"Recoverability of success fee
The paying party submits that the success fee claimed in this case is not recoverable, as information regarding funding was never provided. The paying party refers to Practice Direction Section 19.2(5) …
Level of success fee
Should the court decide that a success fee is recoverable in this case the paying party disputes the 90% claimed … It is our submission that … a success fee of no greater than 20% is reasonable in this case."
"We [Scrivenger Seabrook] on behalf of the Claimant intend to apply for an order for relief from sanction pursuant to CPR 3.9(1) that:
(1) The Claimant should be entitled to recover a success fee as part of his reasonable legal costs.
(2) The costs of this application be assessed as part of the assessment.
Because the Claimant had the benefit of a conditional fee agreement during the course of this litigation but the matter was settled prior to proceedings being issued, subsequently costs only proceedings have been issued.
A notice of funding of case or claim was not filed at that time for which we apologise, however we respectfully request that the court accepts this notice now, in order for the costs assessment to take account of the notice and the conditional fee agreement and insurance. "
THE LAW
"(k) "Funding arrangement" means an arrangement where a person has –
(i) entered into a conditional fee agreement or collective conditional fee agreement which provides for a success fee within the meaning of Section 58(2) of the Courts and Legal Services Act 1990
(o) "Additional liability" means the percentage increase, the insurance premium or the additional amount in respect of provision made by a membership organisation as the case may be. "
"(1) The court will not assess any additional liability until the conclusion of the proceedings or the part of the proceedings to which the funding arrangement relates. "
"Because it was felt that disclosure of full details of funding arrangements, particularly the percentage success fee in a conditional fee agreement, was prejudicial, the rules provide for limited information to be given to opposing parties until the final assessment (summary or detailed) is made. The rule provides that the court will not assess any additional liability until the conclusion of the relevant part of the proceedings. "
"(1) A party who seeks to recover an additional liability must provide information about the funding arrangement to the court and to other parties as required by a rule, practice direction or court order. "
"The rule provides that any party who seeks to recover an additional liability must provide certain information about it and must also provide information where the funding arrangement changes. The information to be provided in the notice of funding and in the estimate of costs is limited. Much fuller disclosure of information is required when the final assessment of costs takes place. See Section 19 of the Costs Practice Direction ("CPD")."
"A party may not recover as an additional liability:
…
(c) any additional liability for any period in the proceedings during which he failed to provide information about a funding arrangement in accordance with a rule, practice direction or court order. "
"(1) A party who wishes to claim an additional liability in respect of a funding arrangement must give any other party information about that claim if he is to recover the additional liability. There is no requirement to specify the amount of the additional liability separately nor to state how it is calculated until it falls to be assessed … "
"In this paragraph, "claim form" includes petition and application notice and the notice of funding to be filed or served is a notice containing the information set out in Form N251.
(a) A claimant who has entered into a funding arrangement before starting the proceedings to which it relates must provide information to the court by filing the notice when he issues the claim form.
(b) He must provide information to every other party by serving the notice. If he serves the claim form himself he must serve the notice with the claim form. If the court is to serve the claim form, the court will also serve the notice if the claimant provides it with sufficient copies for service. "
"In all other circumstances a party must file and serve notice within seven days of entering into the funding arrangement concerned. "
"There is no requirement in this Practice Direction for the provision of information about funding arrangements before the commencement of proceedings. Such provision is however recommended and may be required by a pre action protocol. "
"Unless the court otherwise orders, a party who is required to supply information about a funding arrangement must state whether he has entered into a conditional fee agreement which provides for a success fee within the meaning of Section 58(2) of the Courts and Legal Services Act 1990 …
(2) Where the funding arrangement is a conditional fee agreement, the party must state the date of the agreement and identify the claim or claims to which it relates (including Part 20 claims if any). "
"In any case to which rule 44.3B(1)(c) or (d) applies the party in default may apply for relief from the sanction. He should do so as quickly as possible after he becomes aware of the default. An application must be supported by evidence, should be made under Part 23 to a Costs Judge or District Judge of the court which is dealing with the case. (Attention is drawn to rules 3.8 and 3.9 which deal with sanctions and relief from sanctions). "
PRE ACTION PROTOCOLS
"(1) To encourage the exchange of early and full information about the prospective legal claim.
(2) To enable parties to avoid litigation by agreeing a settlement of the claim before the commencement of proceedings.
(3) To support the efficient management of proceedings when litigation cannot be avoided. "
"The court will expect all parties to have complied in substance with the terms of an approved protocol. "
"A.1 Where a person enters into a funding arrangement within the meaning of rule 43.2(1)(k) he should inform other potential parties to the claim that he has done so.
A.2 Paragraph 4A.1 applies to all proceedings whether proceedings to which a pre action protocol applies or otherwise. "
ISSUE 1 – IS THE SUCCESS FEE RECOVERABLE?
THE DEFENDANT'S SUBMISSIONS
"Is the claimant's conduct before the proceedings in failing to give notice of the funding arrangement conduct which the court is entitled to take into account in deciding whether to withhold or reduce the claimant's entitlement to recover a success fee? In answering that question I remind myself that there is nothing in either the rules, the practice directions or any pre action protocol requiring the claimants to give notice but merely a recommendation that they should do so. "
THE CLAIMANT'S SUBMISSIONS
"There is no requirement in this Practice Direction for the provision of information about funding arrangements before the commencement of proceedings. Such a provision is however recommended and may be required by a pre action protocol. "
MY DECISION
"Paragraph 19.2(5) of the Costs Practice Direction makes it plain that in the context of the rules relating to costs, the word proceedings refers to the issuing of the court process. "
"Such provision [of information] is however recommended and may be required by a pre action protocol. "
"The court must also have regard to –
(a) the conduct of all the parties, including in particular –
(i) the conduct, before as well as during the proceedings … "
ISSUE 2 – RELIEF FROM SANCTIONS
(a) The interests of the administration of justice
(b) Whether the application was made promptly
(c) Whether the failure to comply was intentional
(d) Whether there is a good explanation for the failure
(e) The extent to which the party in default has complied with other rules, practice directions, court orders and any relevant pre action protocol
(f) Whether the failure to comply was caused by the party or his legal representative
(g) Whether the trial or the likely trial date can still be met if relief is granted
(h) The effect which the failure to comply had on each party
(i) The effect which the granting of relief would have on each party
MY DECISION
ISSUE 3 - LEVEL OF THE SUCCESS FEE
"(b) our arrangements with you about paying disbursements;
(c) the fact if you lose, we will not earn anything;
(d) our assessment of the risks of your case. These include the following:
(i) for your claim to succeed we have to establish both breach of duty and causation, ie we need to show that MrClipston
not only failed to carry on adequate dental treatment and hygiene but that that failure was responsible for your current poor condition and not due to another cause.
(ii) We can tell you that claims of dental negligence are always thoroughly resisted by the Dental Defence Society and they will resist making any admissions on MrClipston
's behalf which would result in a payment to you. "
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