|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales High Court (Senior Courts Costs Office) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Senior Courts Costs Office) Decisions >> Samonini v London General Transport Services Ltd.  EWHC 90001 (Costs) (19 January 2005)
Cite as:  EWHC 90001 (Costs)
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
SCCO Ref: DOFL 0405618
SUPREME COURT COSTS OFFICE
FROM THE ILFORD COUNTY COURT
London, EC4A 1DQ
B e f o r e :
ON APPEAL FROM PRINCIPAL COSTS OFFICER O'RIORDAN
| MAURIZIO SAMONINI
|- and -
|LONDON GENERAL TRANSPORT SERVICES LTD
Mr S. Chawatama (instructed by Kennedys) for the Defendant
Hearing date : 2 December 2004
Crown Copyright ©
Chief Master Hurst
"Mr O'Riordan stated that insufficient LEI checks had been carried out. This is not correct and the statements of Michael Jones and Maurizio Samonini are relied upon."
"(1) A conditional fee agreement which satisfies all of the conditions applicable to it by virtue of this section shall not be unenforceable by reason only of its being a conditional fee agreement; but … any other conditional fee agreement shall be unenforceable.
(3) The following conditions are applicable to every conditional fee agreement:
(c) it must comply with such requirements (if any) as may be prescribed by the Lord Chancellor."
"4(1) Before a conditional fee agreement is made the legal representative must:-
(a) inform the client about the following matters, and
(b) if the client requires any further explanation, advice or other information about any of those matters, provide such further explanation, advice or other information about them as the client may reasonably require.
(2) Those matters are:
(a) the circumstances in which the client may be liable to pay the costs of the legal representative in accordance with the agreement;
(b) the circumstances in which the client may seek assessment of the fees and expenses of the legal representative and the procedure for doing so;
(c) whether the legal representative considers that the clients risk of incurring liability for costs in respect of the proceedings to which the agreement relates is insured against under an existing contract of insurance;
(d) whether other matters of financing those costs are available, and, if so, how they apply to the client and the proceedings in question;
(e) whether the legal representative considers that any particular method of methods of financing any or all of those costs is appropriate and, if he considers that a contract of insurance is appropriate or recommends a particular such contract –
(i) his reasons for doing so, and;
(ii) whether he has an interest in doing so."
"107. The key question therefore is whether the conditions applicable to the CFA by virtue of Section 58 of the 1990 Act have been sufficiently complied with in the light of their purposes. Costs Judges should accordingly ask themselves the following question:
"Has the particular departure from a Regulation pursuant to Regulation 58(3)(c) of the 1990 Act or a requirement in Section 58, either on its own or in conjunction with any other such departure in this case, had a materially adverse effect either upon the protection afforded to the client or upon the proper administration of justice?"
If the answer is "yes" the conditions have not been satisfied. If the answer is "no" then the departure is immaterial and (assuming there is no other reason to conclude otherwise) the conditions have been satisfied."
"114 … ATE insurance premiums are recoverable as costs in any proceedings irrespective of whether or not there is a CFA between the receiving party and her legal representatives. The client's liability to pay the insurance premium arises from the contract of insurance, not from her contract with the legal representative. It arises whether or not there is a CFA and whether or not the CFA is enforceable … It would appear therefore that there is no bar to the recovery of the ATE insurance premium as costs whatever may be the bar to the recovery of the lawyers' charges and success fee."
"45. In our judgment proper modern practice dictates that a solicitor should normally invite a client to bring to the first interview any relevant motor insurance policy, any household insurance policy and any stand alone BTE insurance policy belonging to the client and/or any spouse or partner living in the same household of the client …"
"An AAH panel solicitor has now agreed to act for me to pursue my claim on a conditional fee basis. I confirm that I want the solicitor (my solicitor) to act for me. I understand a conditional fee agreement (CFA) will be sent to me upon which I shall be professionally advised before I enter into it."
"Panel solicitor means a solicitor who has entered into an agreement with AAH"
"… I ask AAH to arrange for the issue of an insurance certificate for a premium of £760 plus insurance premium tax and for the premium to be paid from the loan."
"This fee will initially be funded by the loan. If I win compensation this fee will be deducted by the bank to repay that part of the loan."
"I understand that there are a number of ways of funding personal injury claims including:
(a) legal aid …
(b) trade union …
(c) private solicitor – I can instruct a solicitor on a private paying basis or enquire if a conditional fee agreement with insurance would be available to me. Such a solicitor may or may not also be able to make arrangements for a loan to pay expenses, eg court fees, medical experts fees;
(d) legal expenses insurance – I may have legal expenses insurance cover (which may be included in my house or car insurance) under which I could claim.
I have considered and understood these options. I confirm that I am not aware that I have any suitable legal expenses insurance in place (but should this not be the case, I elect not to use it) and I confirm I wish to proceed with AAH."
"Acceptance of this case will be deemed as an automatic instruction by you for Accident Advice Group to commence investigations work."
"The documentation includes a signed and completed statement of truth, conditional fee agreement and consumer credit agreement between Mr Maurizio Samonini and the First National Bank Plc. We also enclose a copy of a signed Accident Advice Helpline Client Agreement which sets out the relationship between the parties involved.
Our investigation team have attended upon the client and explained all of the above documentation. However it is your duty to further contact the client to explain the conditional fee agreement and countersign within the next 10 days and confirm to us in writing.
These duties have formed part of our investigations work and the details will be added to the clients investigation file. For sake of good order, supporting documentation including the Extended Investigation Report, Case History and Correspondence history reports have been included for your file."
"This claim has been accepted in accordance with the terms and conditions of the Accident Advice Helpline Panel Solicitor Manual. Panel solicitors must NOT deviate from the procedures set out in the manual. Procedures referring to medical reports, issuing of proceedings, termination, settlement and loan repayment must be adhered to fully. Where specific permissions and consents are required to perform an action, they must first be requested and obtained in writing.
Termination of a case may carry financial penalties and cannot be effected without Accident Advice Helpline consent.
The panel solicitors responsible for the recover of the all costs and disbursements [including the initial costs incurred and insurance premium].
Initial Costs Incurred
Investigation work has been performed following panel solicitor instructions and payment arranged via funding options.
A funding backed after the event legal expenses insurance policy has been purchased."
"The client does not have legal expenses insurance, the following LEI checks have been noted: 17.9.02 received confirmation from broker/client."
"16.9.02 Summary: Good circs. Hit while parked stationary. We have 2 wits, who can confirm the client wasn't moving. TP admitted liability. We have TPI dets …
17 September 2002: Spoke to client, he said he has no LEI, sent to MPJ."
"Immediately before the agreement was made, we explained the following points to you:
(2) Whether we consider that your risk of incurring liability for fees and disbursements (ours and/or your opponents) in these proceedings is insured under an existing contract of insurance."
"Mr Samonini came to this firm via a claims management company called Accident Advice Helpline (AAH). I would vet the claim for merit and if I accepted a claim I would receive details of the client and would progress the claim from that point on. I know that AAH had two schemes for dealing with road traffic accidents. One was the "LEI" scheme and the other was the "CFA" scheme. This is self explanatory. This firm took only claims under the "CFA" scheme. As far as I am aware each scheme was equally profitable for AAH. I knew that AAH carried out LEI checks in advance of sending out claims – it was not in their interests to issue policies or have inappropriate funding for the claimant."
"When I received the pack back from AAH I noted that an LEI check had been done.
Finally I confirm that when I telephoned Mr Samonini on 7 October 2002 I complied with the necessary Regulations concerning oral advice. It is not cost effective to write down everything I say on each occasion and I use shorthand. I go through the points entitled "other points" in the conditional fee agreement. I do not recall if I asked Mr Samonini directly if he had legal expenses insurance as I already knew the answer but I always told the client the reasons why we have to use a conditional fee agreement and why insurance is taken out – that is because there is no other insurance. I believe I would have said the same to Mr Samonini. I do not recall if he made any comment on my explanation of the conditional fee agreement but there was nothing to alert me that a conditional fee agreement with additional liability was inappropriate."
i. Should the court embark on the enquiry?
ii. Has there been a breach of the Regulations? and
iii. Was the breach material?
i. the solicitor relied entirely on the check by AAH, since he "already knew the answer";
ii. AAH are not a party to the CFA and did the LEI check (which Mr Chawatama argues was inadequate in any event) at a time prior to the appointment of the panel solicitors;
iii. the Claimant was only ever asked by AAH whether he had LEI, he was not asked about household insurance or asked to produce motor and household policies;
iv. the attendance note for 7.10.02 appears to suggest the Claimant waived his recourse to LEI; and
v. there was no reference to consideration of LEI in the solicitors' follow up letter after the telephone attendance of 7.10.02.
Should the Court Embark on the Enquiry
"But in this case the revelation of the fact that the client had legal expenses cover under her motor insurance policy and at no cost to her is plainly inconsistent with the information in the documentation."
"But where it becomes apparent as here that somebody did in fact have BTE insurance then the question can properly be raised as to whether there was compliance with 4(2)(b)."
"The Claimants solicitors are asked to confirm whether they have complied with the general principles set out in the case of Sarwar v Alam and the Claimant's (sic) will be requested to disclose the initial attendance with the Claimant to ensure that all enquiries were undertaken."
"It should be noted that the Claimant would have an insurance policy to cover him for any accidents as a taxi driver and that he would have been able to bring a claim pursuant to that insurance policy."
HAS THERE BEEN A BREACH OF THE REGULATIONS?
"I do not recall if I asked Mr Samonini directly if he had legal expenses insurance as I already knew the answer."
"I gave details of my claim to AAH. I was then contacted by Mr Jones who explained the document called the conditional fee agreement to me. He told me we had to enter into the agreement and take out an insurance policy as I did not already have one."
"We must stress that we are only concerned on this issue with the question whether, as a matter of principle, a solicitor may delegate his Regulation 4 responsibilities to a wider class of people than those embraced by Mr Burnett's primary argument on the appeal. If it is possible to delegate more widely then the solicitor will remain professionally responsible for the performance of the person who actually performs the duties. Each situation must be considered on its own facts. Parliament wishes to foster new ways of rendering litigation services and, provided that the performance of Regulation 4 duties is appropriately delegated and the duties are properly performed under appropriate supervision, we cannot see that Parliament's intentions are being thwarted if the solicitor delegates more widely than is allowed for in Mr Bernard's primary argument before us. We would not wish to be prescriptive about the form which that supervision should take provided that an appropriate system has been set up."
"Has a particular departure from a Regulation … either on its own or in conjunction with any other such departure in the case had a materially adverse effect either upon the protection afforded to the client or upon the proper administration of justice."
"The guidance we have given in this part of our judgment should not be treated as an inflexible code. The overriding principle is that the claimant assisted by his/her solicitor should act in a manner that is reasonable. The availability of ATE at a modest premium will inevitably restrict the extent to which it will be reasonable for a solicitor to be used in investigating alternative sources of insurance."
WAS THE BREACH MATERIAL?