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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Factortame & Ors, R (on the application of) v Secretary of State for Transport [2002] EWCA Civ 932 (3 July 2002) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2002/932.html Cite as: [2002] EWCA Civ 932, [2003] QB 381, [2002] 4 All ER 97, [2003] BLR 1, [2002] 3 Costs LR 467, [2002] 3 WLR 1104 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
SUPREME COURT COSTS OFFICE
COSTS JUDGE WRIGHT
Strand, London, WC2A 2LL | ||
B e f o r e :
LORD JUSTICE ROBERT WALKER
and
LORD JUSTICE CLARKE
____________________
THE QUEEN ON THE APPLICATION OF FACTORTAME & OTHERS | Respondent | |
- and - | ||
THE SECRETARY OF STATE FOR TRANSPORT | Appellant |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Christopher Hancock, QC and Mr Jeremy Morgan (instructed by Thomas Cooper & Stibbard) for the Respondents
____________________
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Phillips MR
This is the judgment of the court
Background facts
“…. the financial position of the Anglo-Spanish fleet in 1997 was parlous in the extreme. Of 100 or so Claimants, a large number had given up fishing, sold their vessels and licences and were holding their creditors at bay pending the outcome of the litigation. Many had gone into liquidation, others had been dissolved and a significant number languished in a sort of insolvent dormancy while the Inland Revenue, the VAT authorities, banks, trade creditors and others anxiously awaited the outcome of the litigation.”
The engagement of Grant Thornton
“(i) The effect of the MSA had been to lay up a virtually complete section of the British fishing industry. That section was the group of vessels which fished in ICES Area VII (i.e., off the south west and west coasts of the Republic of Ireland) and, to a lesser extent in British waters in the south west approaches) against UK quotas of, principally, three species of fish –Hake, Monk and Megrim. The vessels were fresh fish catchers (i.e., although they carried ice they did not freeze the catch so it had to be brought to market quickly). As to gear, the vessels were either longliners, trawlers or gill netters. The market for the fish was Spain which was reached either by landing in the UK and transporting the catch in refrigerated trucks or landing direct into Spain. The vessels had been laid up for between 18 months and 3 years. As general rule, the poorer the company the longer it took to get back to sea following the House of Lords interim measures judgment.
(ii) The problem facing the experts was to assess how much the vessels would have caught and what they would have sold the catch for at a time when both the amount available to be caught and the price was – or at any rate could have been – severely affected by the very absence of the vessels in question. To assess the loss of profit of a ball bearing factory caused by a two year shut down is a relatively straightforward matter. It should be possible to assess how many ball bearings the factory could have produced and what the market price for them would have been – neither of these variables will be affected by the closure of the factory. The fishing boats on the other hand fished against artificially set and administered quotas and were the principal suppliers to a very volatile fish market. Prices soared in 1990- 1992 but who knows whether this was because of the absence of the Anglo-Spaniards or would have happened anyway. Moreover, there is no market price for fish. The price of fish depends principally on quality and quality depends principally on freshness. Some vessels (particularly the Basques) cut short their trips to get a fresher catch to the market. Some vessels prefer to get a lower price for a larger quantity. Each major Spanish fish market publishes daily prices for the important species but the range of prices on a particular day is so enormous both from port to port and within individual ports that published prices are a useless guide to what an individual vessel could have achieved throughout the year.
(iii) In addition all manner of variables have to be taken into account:
(a) weather conditions during actual years of lay-up in particular the high price months;
(b) when in the year the quota might have been exhausted;
(c) would the vessels have missed trips because of mechanical breakdown?
(d) how would MAFF have managed the quota during the year? Fish are migratory and are more abundant at some times during the year than others. Furthermore demand is not even throughout the year fish being especially in demand in Spain at Christmas.
(iv) Variables at a deeper level were:
(a) the development during the 1990s of the “sectoral” system of quota management which, for reasons too complicated to explain in this statement, severely prejudiced those who had been forced by the MSA to stop fishing because the “sectoral” system was based on catches during a reference period which included the lay-up period;
(b) the development of a large fish exporting industry from South America to Spain. This industry used aircraft to transport the fish. It was therefore very expensive but has now been established and competes effectively with the traditional industry. Whether it would have been established but for the severe disruption of supplies of fish during the lay-up period is a moot point.”
“TERMS OF ENGAGEMENT IN RESPECT OF CLAIMS IN RELATION TO THE UNLAWFUL PROHIBITION OF FISHING RIGHTS IN THE TERRITORIAL WATERS OF THE UNITED KINGDOM
Our Instructions
We write to confirm your instructions for us to prepare and submit your claims for loss or damage suffered as a result of the unlawful prohibition of fishing in the territorial waters of the United Kingdom.
Our Team
Because of the potential size of claims we have drawn together a first class team with a wealth of relevant knowledge and experience. These are set out in detail in our proposal, and include:
- David Anton, one of the UK’s leading expert witnesses.
- Nautilus Consulting, Europe’s foremost firm of fishing consultants.
- Grant Thornton, one of the leading international firms of accountants with many years of experience in this matter and with the facilities for translation available through their offices in Spain.
Finally we will provide expertise to reduce any liability to the United Kingdom taxation authorities, thereby increasing the amount of cash available to you.
Our Fees
Our fees for this work will be 8% of the final settlement received, plus any relevant value added tax.
Costs charged to the UK Government
As part of the claim process we should be able to recover some of our fees, if successful, from the United Kingdom Government. We undertake to pay to you the monies recovered from the Government. This reduces your overall costs.
Other matters
Whilst we have a wealth of experience in dealing with claims for damages we are not lawyers. We will therefore work closely with Stephen Swabey of Thomas Cooper & Stibbard, your solicitor, to advise us, where appropriate, as to any points of law of relevance to our work or to its conduct.
Governing law
This engagement shall be governed by and construed by in accordance with English Law and you hereby agree with us to submit for all purposes in connection with this engagement to the exclusive jurisdiction of the English courts.
Books and Papers
We need to start the exercise immediately therefore we will contact you to access your business’ books and papers in the near future.
All documents we create or receive from third parties, either as principal in our own right or agent for the business, belong to Grant Thornton. Any documents belonging to the business which have been delivered to our office remain your property.”
Fast track and slow track
The July 2000 Agreements
“WHEREAS
1. By a contract dated 13th July 1998, Grant Thornton were appointed by and on behalf of the Company to prepare and submit the Company’s claims against the Secretary of State for Transport for loss and damage suffered as a result of unlawful prohibition of fishing in the territorial waters of the United Kingdom (“the assignment”).
2. The said claims form part of a multi-claimant action proceeding in the Technology and Construction Court under action number 1998 TCC 546 (“the Factortame litigation”).
3. The terms of the written contractual document failed clearly to reflect the fee payment terms upon which Grant Thornton had agreed to undertake the assignment.
NOW THIS DEED WITNESSES as follows:
1. In consideration of Grant Thornton agreeing to advise the company as to the appropriateness of the level of any offers of settlement (whether pursuant to CPR Part 36 or otherwise) received by the Company in relation to its said claims, and in consideration of Grant Thornton agreeing to provide ongoing advice of a general nature in respect of the application of certain principles of the law of Value Added Tax in relation to the company’s claims which are the subject matter of the assignment, IT IS AGREED and confirmed that the company is liable to meet Grant Thornton’s fees for the assignment on the basis set out below.
2. In relation to costs which are or have been incurred (whether by way of Grant Thornton’s own time costs, payments made by grant Thornton to third parties, or otherwise) and which are of sole and specific benefit to the Company’s claims (“specific costs”), the Company hereby assigns to Grant Thornton 8% of the damages (together with any interest thereon) awarded to the Company, whether following judgment or by prior settlement. The Company will, in addition, be responsible for the payment of any Value Added Tax chargeable upon all fees.
3. In relation to costs which, given the multi-claimant nature of Factortame litigation, are or have been incurred for the general benefit of all claimants in the Factortame litigation by whom Grant Thornton are instructed, (“generic costs”, the Company will be responsible for payment of those costs on a joint and several basis with other such claimants.
4. In the interests of administrative convenience, given the joint and several nature of the Company's liability for generic costs, the Company will instruct its solicitors, Thomas Cooper & Stibbard, to enter a separate contract directly with Grant Thornton in order that generic costs may be invoiced directly by Grant Thornton to Thomas Cooper & Stibbard, who also act for all other relevant claimants, who will discharge the generic costs invoice on behalf of all such claimants as a disbursement.”
The nature of the services provided
(a) to issue proceedings before any court; and
(b) to perform any ancillary functions in relation to proceedings (such as entering appearances to actions)’
“By acting as claims consultants in the arbitration, Knowles neither acted as a solicitor nor purported to act as a solicitor within the letter or spirit of section 20(1) or section 25(1) of the Solicitors Act 1974. An unqualified person does not act as a solicitor within the meaning of section 25(1) merely by doing acts of a kind commonly done by solicitors. To fall within that phrase, the act in question must be an act which it is lawful only for a qualified solicitor to do and/or any other act in relation to which the unqualified person purports to act as a solicitor.”
“The Firm of Grant Thornton Chartered Accountants were appointed by the applicants and their Solicitors to advise on co-ordinate and play a major part in the gathering of voluminous and complex evidence as to loss, particularly that within their expertise as Chartered Accountants. Grant Thornton were also instrumental in the appointment of the Independent Experts instructed and again played a major part in the assisting and liasing with those Experts and also with Solicitors and Counsel. Grant Thornton worked closely with the Experts to create the original Model for calculating the losses claimed. Grant Thornton made a considerable number of modifications to the model and created several different versions to accommodate various contentions and arguments. Grant Thornton were engaged throughout in a supporting and advisory role to the Applicants and their legal representatives.
Grant Thornton’s involvement was also very cost effective, as overall their charging rates were significantly lower than Thomas Cooper and Stibbard’s rates and it will be appreciated that Thomas Cooper and Stibbard would have had to carry out all the work undertaken by Grant Thornton if Grant Thornton had not been involved.”
The law of champerty
“The abolition of criminal and civil liability under the law of England and Wales for maintenance and champerty shall not affect any rule of that law as to the cases in which a contract is to be treated as contrary to public policy or otherwise illegal.”
Thus, champerty survives as a rule of public policy capable of rendering a contract unenforceable.
“…the law of maintenance depends upon the question of public policy, and public policy …is not a fixed and immutable matter. It is a conception which, if it has any sense at all, must be alterable by the passage of time.”
“There is, I think, a clear requirement of public policy that officers of the court should be inhibited from putting themselves in a position where their own interests may conflict with their duties to the court by agreement, for instance, of so called “contingency fees”.
“The reason why the common law condemns champerty is because of the abuses to which it may give rise. The common law fears that the champertous maintainer might be tempted, for his own personal gain, to inflame the damages, to suppress evidence, or even to suborn witnesses. These fears may be exaggerated, but, be that so or not, the law for centuries had declared champerty to be unlawful, and we cannot do otherwise than enforce the law; and I may observe that it has received statutory support, in the case of solicitors, in section 65 of the Solicitors Act 1957.”
“The relevance of s58 is that Parliament has, subject to the requirements of the section, empowered the Lord Chancellor to validate by order agreements for a percentage uplift in the costs in the event of success. The ability to recover fees beyond what was otherwise reasonable was intended to be ‘an incentive to lawyers to undertake speculative actions’. Such agreements were, and in the absence of an order still are, unlawful as being contrary to public policy. The rationale of the common law rule is that such agreements allowed the duty and interest of solicitors to conflict with a resultant risk of abuse of legal procedure. Section 58 evidences a proposed modification in relation to an important species of champerty. It represents at least a concession to the view that the abuses associated with champerty are not the inevitable result of all variants of contingency fee agreements. And there is, of course, no more cogent evidence of a change of public policy than the expression of the will of Parliament.”
Subsequently, he observed at p.332:
“Contingency fee agreements are nowadays perhaps the most important species of champerty. Such agreements are still unlawful. Yet an English solicitor may share in a contingency fee earned in foreign litigation; see r.8 (contingency fees) of the Solicitors’ Practice Rules 1990. This reinforces the point that the doctrine of champerty serves to protect only the integrity of English public justice. It is based not on grounds of morality but on a concern to protect the administration of civil justice in this country.”
He continued, on the following page:
“Ultimately, it is necessary to consider the questions posed in this case in the light of contemporary public policy.
The correct approach is not to ask whether, in accordance with contemporary public policy, the agreement has in fact caused the corruption of public justice. The court must consider the tendency of the agreement. The question is whether the agreement has the tendency to corrupt public justice. And this question requires the closest attention to the nature and surrounding circumstances of a particular agreement. That is illustrated by the well-known decision of the House of Lords in Trendtex Trading Corp v Credit Suisse [1981] 3 AllER 520, [1982] AC 679.”
“In the most recent decades of the present century maintenance and champerty have become almost invisible in both their criminal and their tortious manifestations. In practice, they have maintained a living presence in only two respects. First, as the source of the rule, now in the course of attenuation, which forbids a solicitor from accepting payment for professional services on behalf of a plaintiff calculated as a proportion of the sum recovered from the defendant. Secondly, as the ground for denying recognition to the assignment of a “bare right of action”. The former survives nowadays, so far as it survives at all, largely as a rule of professional conduct, and the latter is in my opinion best treated as having achieved an independent life of its own.”
“It is sufficient to adopt the description of the policy underlying the former criminal and civil sanctions expressed by Fletcher Moulton LJ in British Cash and Parcel Conveyors Ltd v. Lamson Store Service Co. Ltd [1908] 1 KB 1006, 1014:
“It is directed against wanton and officious intermeddling with the disputes of others in which the [maintainer] has no interest whatever, and where the assistance he renders to the one or the other party is without justification or excuse.”
This was a description of maintenance. For champerty there must be added the notion of a division of the spoils.”
“Returning to the company, is it wantonly or officiously interfering in the litigation; is it doing so in order to share in the profits? I think not. The company makes its profits from the hiring, not from the litigation. It does not divide the spoils, but relies upon the fruits of the litigation as a source from which the motorist can satisfy his or her liability for the provision of a genuine service, external to the litigation. I can see no convincing reason for saying that, as between the parties to the hiring agreement, the whole transaction is so unbalanced, or so fraught with risk, that it ought to be stamped out. The agreement is one which in my opinion the law should recognise and enforce.”
Legislation
“(1) A solicitor who is retained or employed to prosecute or defend any action, suit or other contentious proceeding shall not enter into any arrangement to receive a contingency fee in respect of that proceedings, save one permitted under statute or by the common law.
(2) Paragraph (1) of this rule shall not apply to an arrangement in respect of an action, suit or other contentious proceeding in any country other than England and Wales to the extent that a local lawyer would be permitted to receive a contingency fee in respect of that proceeding.”
“Contingency fee” is defined by Rule 18(2)(c) to mean:
“any sum (whether fixed, or calculated either as a percentage of the proceeds or otherwise howsoever) payable only in the event of success in the prosecution of any action, suit or other contentious proceeding….”
“(1) In this section ‘a conditional fee agreement’ means an agreement in writing between a person providing advocacy or litigation services and his client which-
(a) does not relate to proceedings of a kind mentioned in subsection (10);
(b) provides for that person’s fees and expenses, or any part of them, to be payable only in specified circumstances;
(c) complies with such requirements (if any) as may be prescribed by the Lord Chancellor; and
(d) is not a contentious business agreement (as defined by section 59 of the Solicitors Act 1974).
(2) Where a conditional fee agreement provides for the amount of any fees to which it applies to be increased, in specified circumstances, above the amount which would be payable if it were not a conditional fee agreement, it shall specify the percentage by which that amount is to be increased.
(3) Subject to subsection (6), a conditional fee agreement which relates to specified proceedings shall not be unenforceable by reason only of its being a conditional fee agreement.
(4) In this section ‘specified proceedings’ means proceedings of a description specified by order made by the Lord Chancellor for the purposes of subsection (3).
(5) Any such order shall prescribe the maximum permitted percentage for each description of specified proceedings.
(6) An agreement which falls within subsection (2) shall be unenforceable if, at the time when it is entered into, the percentage specified in the agreement exceeds the prescribed maximum permitted percentage for the description of proceedings to which it relates.
(7) Before making any order under this section the Lord Chancellor shall consult the designated judges, the General Council of the Bar, the Law Society and such other authorised bodies (if any) as he considers appropriate.
(8) Where a party to any proceedings has entered into a conditional fee agreement and a costs order is made in those proceedings in his favour, the costs payable to him shall not include any element which takes account of any percentage increase payable under the agreement.”
‘advocacy services’ means any services which it would be reasonable to expect a person who is exercising, or contemplating exercising, a right of audience in relation to any proceedings, or contemplated proceedings, to provide;
….
… ‘litigation services’ means any services which it would be reasonable to expect a person who is exercising, or contemplating exercising, a right to conduct litigation in relation to any proceedings, or contemplated proceedings, to provide;”
“(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 (subject to subsection (5)) any other conditional fee agreement shall be unenforceable.
(2) For the purposes of this section and section 58A-
(a) a conditional fee agreement is an agreement with a person providing advocacy or litigation services which provides for his fees and expenses, or any part of them, to be payable only in specified circumstances; and
(b) a conditional fee agreement provides for a success fee if it provides for the amount of any fees to which it applies to be increased, in specified circumstances, above the amount which would be payable if it were not payable only in specified circumstances.
(3) The following conditions are applicable to every conditional fee agreement-
(a) it must be in writing;
(b) it must not relate to proceedings which cannot be the subject of an enforceable conditional fee agreement; and
(c) it must comply with such requirements (if any) as may be prescribed by the Lord Chancellor.
(4) The following further conditions are applicable to a conditional fee agreement which provides for a success fee-
(a) it must relate to proceedings of a description specified by order made by the Lord Chancellor;
(b) it must state the percentage by which the amount of the fees which would be payable if it were not a conditional fee agreement is to be increased; and
(c) that percentage must not exceed the percentage specified in relation to the description of proceedings to which the agreement relates by order made by the Lord Chancellor.”
“17 The statutory objective and the general principle
(1) The general objective of this Part is the development of legal services in England and Wales (and in particular the development of advocacy, litigation, conveyancing and probate services) by making provision for new or better ways of providing such services and a wider choice of persons providing them, while maintaining the proper and efficient administration of justice.”
“…the disparities between lawyers and non-lawyers; for example, claims assessors and so on who are able to operate contingency fees. And yet the essential difference between the two is something which my noble and learned friend has lost no opportunity of emphasising throughout our debates; that is, quality control. There is no quality control in relation to claims assessors and people of that character.”
The Lord Chancellor replied :
“The noble Lord, Lord Clinton-Davis, asked about the work of claims’ assessors and related categories. Those are people who offer to recover compensation for members of the public arising, for example, out of personal injury, for a fixed percentage of the damages recovered. I have to say that I have to share his anxieties in that regard. I and my department have received complaints from lawyers about the activities of those people and indeed other practitioners whose activities fall short of the work of litigators and who are otherwise not currently regulated.”
“A contingency fee, that is, an arrangement under which the legal advisers of a litigant shall be remunerated only in the event of the litigant succeeding in recovering money or other property in the action, has hitherto always been regarded as illegal under English law on the ground that it involves maintenance of the action by the legal adviser. Moreover where, as is usual in such a case, the remuneration which the adviser is to receive is to be, or to be measured by, a proportion of the fund or of the value of the property recovered, the arrangement may fall within that particular class of maintenance called champerty….. It may, however, be worthwhile to indicate briefly the nature of the public policy question. It can, I think, be summarised in two statements. First, in litigation a professional lawyer’s role is to advise his client with a clear eye and an unbiased judgment. Secondly, a solicitor retained to conduct litigation is not merely the agent and adviser to his client, but also an officer of the court with a duty to the court to ensure that his client’s case, which he must, of course, present and conduct with the utmost care of his client’s interests, is also presented and conducted with scrupulous fairness and integrity. A barrister owes similar obligations. A legal adviser who acquires a personal financial interest in the outcome of the litigation may obviously find himself in a situation in which that interest conflicts with those obligations.”
The position of expert witnesses
“Experts – overriding duty to the court
(1) It is the duty of an expert to help the court on the matters within his experience
(2) This duty overrides any obligation to the person from whom he has received instructions or by whom he is paid.”
These provisions enunciate principles which are long established, but have not been universally recognised. Thus, in Whitehouse v Jordan [1981] 1 WLR 246 at p.256 Lord Wilberforce was led to observe:
“It is necessary that expert evidence presented to the court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation. To the extent that it is not, the evidence is likely to be not only incorrect but self-defeating.”
“Payments contingent upon the …outcome of a case must not be offered or accepted. To do so would contravene the expert’s overriding duty to the court.”
The Academy of Experts has also produced a code of conduct in respect of expert evidence which has a similar provision.
“The question whether someone should be able to give expert evidence should depend on whether, (i) it can be demonstrated whether that person has relevant expertise in an area in issue in the case; and (ii) that it can be demonstrated that he or she is aware of their primary duty to the court if they give expert evidence.”
May LJ, also concurring, said:
“As to questions of opinion and generally, I entirely agree with my Lord, the Master of the Rolls, that there is no overriding objection to a properly qualified person giving opinion evidence because he is employed by one of the parties. The fact of his employment may affect its weight but that is another matter.”
“I accept that neither s.3 of the 1972 Act nor the authorities under it expressly exclude the expert evidence of a friend of one of the parties. However, in my judgment, where it is demonstrated that there exists a relationship between the proposed expert and the party calling him which a reasonable observer might think was capable of affecting the views of the expert so as to make them unduly favourable to that party, his evidence should not be admitted however unbiased the conclusions of the expert might probably be. The question is one of fact, namely, the extent and nature of the relationship between the proposed witness and the party.”
“The appellant relies heavily on what is said to be the unfairness inherent in a funding arrangement which has the consequence that, if the claim succeeds, the funders will be reimbursed out of costs which the claimant will recover from him, but that, if the claim fails, he will not recover his costs from the funders. But that is a feature inherent also in a conditional fee agreement. And it is accepted that it is in the public interest to facilitate access to justice by an agreement which has that effect. Indeed, it is accepted that it remains in the public interest to fund litigation by that means notwithstanding that the other party to the proceedings – usually a defendant – is exposed to the risk of liability for the uplifted fees payable under the conditional fee agreement if the claim succeeds.
For my part I can see no difference in principle, in the context of facilitating access to justice, between the lawyer who provides his services pro bono or under a conditional fee arrangement, the expert (say an accountant, a valuer or a medical practitioner) who provides his services on a no-win-no fee basis and the supporter who – having no skill which he can offer in kind – provides support in the form of funding to meet the fees of those who have. In each case the provision of support – whether in kind or in cash – facilitates access to justice by enabling the impecunious claimant to meet the defendant on an equal footing.”
Did the 1998 Agreements put at risk the purity of justice?
“I am satisfied that the role of GT in this case was not of a ‘wanton and officious intermeddler’. GT had an interest in assisting the TCS fast track Claimants to recover damages out of which the Claimants had promised to pay their outstanding professional fees. That, it seems to me, is a legitimate interest.”
An interest in the result of the litigation
The agreement to share the spoils
“The importance of the model should not be underestimated. It was a large, complicated and sophisticated spreadsheet. The evidence before the Costs Judge reveals a dispute, irrelevant for present purposes, as to which party had the most significant involvement in its development. However, one of the Secretary of State’s experts was a statistician, Mr Hall. He produced the model which was used at the trial, gave a “neutral” explanation and demonstration of its workings to the judge during the openings, participated in expert meetings at which it was discussed (and to a substantial extent agreed) and gave evidence about it. The claimants did not call an expert statistician. Their fisheries experts, and in particular Mr Banks for the Thomas Cooper claimants, discussed and to a substantial extent agreed principles with the Secretary of State’s fisheries expert. It was GT on behalf of the Thomas Cooper claimants who were responsible for considering whether those principles were properly and adequately reflected in the model and for explaining its working.”
Conclusion
Order: