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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Crane v Canons Leisure Centre  EWCA Civ 1352 (19 December 2007)
Cite as:  CP Rep 15,  1 WLR 2549,  2 All ER 931,  EWCA Civ 1352,  WLR 2549,  1 Costs LR 132
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WANDSWORTH COUNTY COURT
4WT13909; SCCO Ref: 0505183
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MAURICE KAY
LADY JUSTICE HALLETT
CHIEF MASTER HURST
| NICHOLAS CRANE
|- and -
|CANONS LEISURE CENTRE
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
R Drabble QC and Robert Marven (instructed byMessrs Mccullagh & Co) for the Respondent
Hearing dates : 19th November 2007
Crown Copyright ©
Lord Justice May:
" charges for work done by or on behalf of the Solicitors which would have been payable if this agreement did not provide for a success fee, calculated on the basis of the fees allowable for that work in the court in which the action in question is conducted or would be conducted if proceedings were to be issued."
As a matter of language, the important part of this is that the charges are charges by or on behalf of the solicitors. It has been taken to equate with solicitors' profit costs, being their charges for work which they undertake themselves and upon which they aim to make a profit. "Disbursements" were defined in the Collective Conditional Fee Agreement as:
" expenses which the Solicitors incur on the member's behalf in the course of an action, such as court fees, fees for experts, barristers' fees (including success fees for barristers where appropriate), copying charges made by others, travelling and hotel expenses (this is not an exhaustive list)."
Solicitors charge disbursements at cost. They do not attract an uplift for profit nor a success fee.
Smith Graham v. Lord Chancellor's Department (30.7.99), where a litigation enquiry agent was treated as a fee earner of the solicitors so that the costs of engaging him were not disbursements this in the context of the Legal Aid in Criminal and Care Proceedings Costs Regulations 1989. The work he did was appropriate for a solicitor to do and the fact that the enquiry agent was not actually employed by the solicitor did not exclude him from being a fee earner. The solicitor was entitled to charge for this work, which was done, not for the client, but for the solicitor;
Stringer v. Copley (17.5.02) where HHJ Cook, an acknowledged and publishing expert on costs, held that charges of a litigation support agency who took witness statements were part of the profit costs, not disbursements.
"Nowhere in the statute, the regulations, or the rules is there any indication that the court is to have any power to subvert the statutory scheme by determining that although the level of success fee was reasonable in view of the facts which were or should have been known to the legal representative at the time it was set, he is only entitled to recover a different, much lower, success fee in respect of some later period when different facts were or should have been known to him."
In paragraph 49, Lord Justice Brooke said that the court has no power to direct that a success fee is recoverable at different rates for different periods of the proceedings.
Lord Justice Maurice Kay :
"I consider that the language of paragraph 1.2.1 of the CCFA is not apt to describe work which is being done otherwise than by the solicitor or by a solicitor agent or by someone who is genuinely employed by the solicitor In my judgment the arrangements between Costings Limited and Rowley Ashworth were those of solicitors instructing costs consultants on the member's behalf under the CCFA and not those of solicitors instructing other solicitors acting as their agents The fees of Costings Limited are expenses which Rowley Ashworth incurred on behalf of Mr Crane who is 'the member'. The position, I think, falls fairly and squarely within the definition of 'disbursements' in paragraph 1.2.3 of the CCFA. The fact that the fees of costs consultants and costs draftsmen are not specifically mentioned does not, I think, affect this conclusion. The paragraph states: 'this is not an exhaustive list'."
Lady Justice Hallett