Gliddon v Lloyd Maunder Ltd.

The Claimant was employed as a line worker at the Defendant’s abattoir. On 2 December 1998 he suffered an injury at work and on 15 December 1998 he sought the assistance of his trade union, The Transport & General Workers Union, in bringing a claim for damages. The Union instructed Bond Pearce to act on his behalf and that firm sent to the Claimant a letter dated 18 February 1999 which is of a type normally described as a client care letter. That letter was countersigned by the Claimant on 19 February 1999 and returned to the solicitors as confirmation of their terms of engagement.

The solicitors entered into correspondence with the Defendants. In July 1999 the Defendants confirmed that liability was denied. Various steps were then taken on behalf of the Claimant which led ultimately to the issue of proceedings in the Exeter County Court in November 2001. The claim was allocated to the fast track and proceeded to a trial on 1 August 2002 before District Judge Wainwright. He gave judgment for the Claimant with a finding of 40% contributory negligence. The sum payable by the Defendant was assessed at £3,411.56 plus costs to be the subject of detailed assessment if not agreed. A sum of £2,500 in court was ordered to be paid out of court to the Claimant’s solicitors in part settlement. At the trial the Defendants sought to raise some costs issues concerning the indemnity principle and the enforceability of a collective conditional fee agreement (CCFA) made between the trade union and the Claimant’s solicitors in February 2001. At that stage the parties’ main concern was as to whether or not the CCFA should be disclosed to the Defendant solicitors. District Judge Wainwright’s order states:

Proceedings were commenced in this Office on 15 November 2002 and were assigned to me. I took the view that, since the Costs Office cannot give declaratory relief, I could deal with the matter only on the basis that unless the other issues were all agreed, the detailed assessment would also be heard by me. The parties have accepted that position. The Claimant’s solicitors have filed a request for detailed assessment and provided a bill and other papers. The Defendant’s solicitors have filed points of dispute. This judgment sets out my decision on the issues raised at a hearing before me on 16 December 2002 at which both parties were represented by counsel. Mr Bacon appeared for the Claimant and Mr Simon Browne appeared for the Defendant.

At the hearing I had before me, in addition to skeleton arguments from each counsel, a bill of costs which contained a certificate in standard form signed by Mr Mark Thompson, a partner in the Claimant’s solicitors firm, confirming their compliance with the indemnity principle:

As to part 3 of the bill I also had before me a copy of Bond Pearce’s letter to the Claimant dated 26 April 2001 together with the enclosures mentioned in the letter: an information sheet describing the CCFA between the solicitors and the trade union and a risk assessment form explaining why a success fee of 100% was appropriate.

The Costs Practice Direction provides that, where, as here, there is a dispute as to the receiving party’s liability to pay costs to the solicitors who acted for him, "any agreement, letter or other written information provided by the solicitor to his client explaining how the solicitor’s charges are to be calculated" should be filed in court together with the request for detailed assessment (CPD para 40.2(i)). Although I have not yet seen the CCFA in this case I have been given a witness statement signed by the Claimant’s solicitor Mr Thompson on 11 September 2002 which states as follows:

For the Defendants it is now conceded that the court will not order a receiving party to produce to his opponent documents which the receiving party wants to keep secret; the protection for the paying party now is that the court will not take into account in favour of the receiving party any document produced to it by the receiving party which the paying party wants to inspect, where the receiving party has elected not to permit such inspection.

It is also conceded on behalf of the Defendants that they cannot successfully challenge the Claimants’ claim for a success fee merely by putting him to proof of the contractual arrangements providing for such a success fee. Instead it is necessary for them to raise a genuine issue as to whether or not the Claimant is liable to pay a success fee in these proceedings. If they raise such an issue the Claimant will be at risk if he fails to adduce evidence which satisfactorily resolves that issue in his favour. The Defendants further concede that the Claimant’s solicitors’ reluctance to disclose the CCFA does not by itself raise an inference that the CCFA is defective.

The Defendants rely on statements in various documents which they say indicate one or other of the following. First, if, as alleged, there is a relevant CCFA providing for a success fee that agreement is unenforceable because the solicitors have failed to properly inform the Claimant as to the circumstances in which he may be liable to pay costs under it. Alternatively, the statements show that, despite the certificate given in the bill, there is no valid CCFA entitling the Claimant’s solicitors to a success fee in this case.

In respect of the first proposition, the alleged failure to properly inform the Claimant as to his liability for costs, the Defendants draw my attention to the Collective Conditional Fee Regulations 2000 (SI 2000 No.2988) Regulation 4(2) which states as follows:

It will never, I think, be necessary for me to examine the CCFA in order to determine the submissions concerning Regulation 4. The Defendant’s case here is that, even if the CCFA does contain the provision required by the Regulation, the solicitors have not complied with that provision and that failure is of so serious a nature as to entitle the trade union to treat the contract as discharged so far as this Claimant’s case is concerned.

The Claimant’s case is that the statements referred to do not raise any genuine issues challenging the Claimant’s entitlement to a reasonable success fee. As to the information he was given, the Claimant’s case is that he was properly informed as to the circumstances in which he may be liable to pay costs. As to the validity of the CCFA, the Claimant says the only real evidence I have seen on this issue is the certificate in the bill (see paragraph 4 above) and the witness statement of Mr Thompson (see paragraph 6 above). Alternatively, even if he has no liability for Bond Pearce’s costs, the Claimant’s case is that CCFA’s are a new statutory exception to the indemnity principle.

It is agreed between the parties that, even if I find for the Defendant, this decision will only affect Part 3 of the bill (work done after the inception of the alleged CCFA) and will only disentitle the Claimant to claim the success fee. The Defendants concede that, in this case, the making of a void CCFA does not exclude the solicitor’s entitlement to claim in quantum meruit under the original retainer, ie, the retainer relied on in the earlier parts of the bill.

In order to challenge the Claimant’s entitlement to a success fee in this case, the Defendants rely on five documents or groups of documents. It is convenient for me to summarise these in turn, summarising also the answers made by the Claimant.

This letter begins "It is necessary that I write to you to tell you about a change in the contractual arrangement between ourselves and the TGWU". The Defendants draw attention to two lines: the first is in the second paragraph

The Defendants say that the first sentence they rely on indicates that neither the Claimant nor his union will be liable to pay costs and, so far as the Claimant is concerned, this is confirmed by the second sentence relied on. If these sentences mean what they say the Defendant has either been misinformed as to his liability or has been informed that he has no liability.

The Claimant’s response on this document is that it is unrealistic to expect such a letter to deal with the notional liability which may arise against a receiving party under a CFA. The true position more clearly appears on the information sheet enclosed with the letter.

This is a three page document which purports to explain the CCFA between the Claimant’s solicitors and the TGWU. The Defendants draw my attention to some of the text under the heading "How are we paid?":

"We will be paid in the event that your case is successful, as our costs will be paid by the insurers of the other party.

In the event of success, neither you nor the union will be liable to make any payment to us.

In the event that your action fails, the union will cover the expenses we have incurred on your behalf and we will not be paid for our own work.

If the action fails, then the union will cover the costs and expenses of the other side’s legal representatives.

You will appreciate you will not be responsible for any of these charges."

The Defendants contend that these words also either mislead the Claimant as to his liability to pay success fees or they give him a guarantee that he is not liable to pay success fees.

The final section of the information sheet, under the heading "Your obligations" explains a number of obligations which the Claimant has to the Union the failure of which would give the solicitors a right to terminate the agreement. These are numbered 1 to 9, the first being: "If he failed to give his instructions which allow us to do our work properly", and the last being "If the union decides to withdraw legal assistance".

The Defendants point out that this section merely warns the Claimant that he may cease to have a solicitor in certain circumstances. It does not warn him, for example, that if the union does decide to withdraw legal assistance the solicitors may continue to act for him and may seek to recover from him a success fee even if that fee or part of it cannot be recovered from the opposing party.

The Claimant’s case is that this document does realistically describe the Claimant’s position as to costs. As with the covering letter, there is no need to deal explicitly with notional liabilities. Reliance was placed on the approach taken by Lord Denning MR in Lewis v Averay (No.2) [1973] 1 WLR 510 at 513. In that case costs were recoverable by a litigant who had been funded by the Automobile Association who had made clear to him that he "was to be indemnified in all respects by the Automobile Association so that no part of the costs of the appeal has or would have fallen on him". In that case the court still considered the litigant to be the person legally responsible for costs, vis a vis the other party albeit he would be indemnified by the Automobile Association.

For the Claimant, Mr Bacon also points out that the information sheet does deal with the notional liability implicitly: it refers to the risk assessment which the solicitors will make and send to him (if he is not at risk why send such a document?) and it explains his right to seek an assessment of their costs. The latter point is somewhat weakened for the Claimant by the full text of the statement which I now set out:

Mr Bacon also relies on the "Your obligations" section of the information sheet as providing a sufficient and appropriate warning to the Claimant of the promise he made when first seeking the Union’s assistance. The form which he signed at that time (15 December 1998) contained these words:

This letter appears to be an earlier version of the client care letter sent to the Claimant in this case. Bond Pearce sent it to another employee a fortnight before they sent the letter I have referred to in paragraph 15, above. The Defendants claim it is relevant to the extent that it throws light upon the same CCFA relied on by the Claimant in this case. In this letter the Defendants seek to rely on bullet points which are very similar to bullet points relied on in the information sheet given to the Claimant (see para 18 above).

The union will accept responsibility for the costs risk of the action.

We will be paid in the event of the case being successful by the Defendant’s insurers.

You are not personally at risk for legal costs.

You have certain obligations which mean you should co-operate with us and help us put forward your case.

We may be entitled to a success fee if your case succeeds; the Defendant not you, to be responsible for the cost."

The Defendants argue that, in correspondence relating to the other employee, the Claimant’s solicitors have spoken inconsistently about that employee’s liability to pay costs. The first letter is dated 27 June 2002 and states amongst other things:

The first sentence quoted above appears to define, in terms, which are inconsistent with a valid CCFA, what the employee’s liability for costs is. The last sentence states that the employee is never liable for the success fee, giving a reason which is consistent with the first sentence, ie, a reason which is inconsistent with a valid CCFA.

The letter of 27 June 2002 enclosed a copy of the other employee’s application for union assistance. It seems that that letter prompted a request from the Defendant’s solicitor for a copy of the CCFA. In the Claimant’s solicitor’s letter dated 13 August 2002 copies of the client care letter dated 12 April (to which I have already referred) and the information sheet (as to which see above) are given instead of the CCFA together with this statement:

The Defendants rely upon the difference between "is never liable for this" in the first letter and "is liable to pay this" in the second. They suggest that, at the very least, there must be a doubt as to what the CCFA actually provides.

The Claimants again say that I should put minimal weight on these documents since they do not relate to the Claimant in this case. They also rely upon the second letter as confirming a liability to pay costs.

This is a statement signed by Mr Regnier on 22 January 2002, ie long before the order for costs in this case. I do not in fact know in which proceedings the Claimant’s solicitors deployed this witness statement. Mr Regnier describes himself as a professionally qualified accountant employed by the TGWU as their Executive Financial Director. Most of its paragraphs seek to justify the amount of the sum being awarded to a claimant under Section 30 of the Access to Justice Act 1999 (ie the so called self insurance premium which litigants who are funded by certain membership organisations are allowed in certain circumstances to recover).

The Defendants rely on paragraph 3 of Mr Regnier’s statement which, they say, appears to suggest that the success fee payable under the CCFA is recoverable by the trade union under Section 30 of the Access to Justice Act. It is convenient to set out paragraphs 2, 3 and 4 of the statement:

Counsel for the Claimant did not comment expressly on this witness statement. I infer that they concede that Mr Regnier is who the statement says he is and that he did make this statement: however, they do not concede that this statement supports the Defendant’s challenge to the CCFA.

For the Claimant, Mr Bacon argued that a reasonable success fee would still be recoverable in this case even if I were to rule that the Claimant had no liability to pay any costs. There is no doubt that statutes can and have created exceptions to the indemnity principle. A particularly relevant example here is made by Section 30 of the Access to Justice Act: the costs payable to a party who is a member of certain membership organisations may in certain circumstances include a sum in respect of an undertaking given by the organisation to meet costs liabilities in the proceedings.

None of the primary legislation refers to collective conditional fee agreements. Mr Bacon argues that the exception is created by the CCFA Regulations themselves. He argues that Parliament has clearly intended that as from 30 November 2000 (the date of their implementation) parties are entitled to conduct litigation under the terms of a CCFA under which the liability for costs rests with a body such as a trade union rather than the individual litigant. It is implicit in such secondary legislation that a party to such an agreement who was awarded costs should be entitled to recover costs notwithstanding that he may have no liability to pay them. Reliance was placed upon some wide words in paragraph 33 of the Government’s conclusions to the Collective Conditional Fee Agreement Consultation Paper which was published in September 2000.

In Mr Bacon’s submission the exception is not dependent upon the implementation of Section 31 of the Access to Justice Act, a provision which, both sides accept, is not yet in force.

For the Defendant, Mr Browne relies on some passages in Butterworths Costs and, in particular, the following passage which is taken from page E[193]:

It is convenient to deal with the three topics I have to decide in this order:

The relevance of the indemnity principle.

Was the Claimant misled?

Is there a valid CCFA in this case?

In my judgment the indemnity principle does apply to work done under a CCFA. The CCFA Regulations do not purport to provide a new exception to it. On the contrary, they provide that the parties between whom the agreement is made must include provision under which the legal representative must inform persons such as the Claimant in this case "as to the circumstances in which [he] may be liable to pay the costs of the legal representative". (These words come from the very Regulation relied on by the Defendant in this case.)

Although I acknowledge the theoretical possibility that Regulations might create a new exception to the principle, I do not think these Regulations have done so. As I understand it the structure of a CCFA is as follows: the agreement itself is between the legal representative and the funder only. The Regulations do not give a person whose claim is funded a right to a copy of the agreement or to a copy of the risk assessment which the legal representative must prepare if the agreement provides for a success fee even though both of these documents will have to be produced on detailed assessment. The linkage between the legal representative and the intending litigant lies in a contractual obligation on the latter to permit the funder (in this case the trade union) to instruct a solicitor in the intending litigant’s name. The intending litigant appoints the funder as his agent to arrange and manage the litigation on the intending litigant’s behalf.

In this case the contractual obligation between the Claimant and his trade union is to be found in the document dated 15 December 1998, the text of which I have set out in paragraph 24, above.

On this question I do not think it relevant whether or not Section 31 of the Access to Justice Act is implemented. If there were no linkage of liability between legal representative and the litigant none of that legal representative’s costs would be recoverable by the litigant. The amount "to be paid by him to such representatives" is limited by the indemnity principle. It is not "limited to what would have been payable by him to them if he had not been awarded costs" (the words quoted come from the proposed amendment to section 31).

In reaching this decision I do not accept Mr Bacon’s submissions about the passage from the Government’s consultation paper which I have set out in paragraph 33 above. In my judgment, that passage does not provide an accurate statement of the law.

In my judgment the Defendants have failed to show a breach of the contractual provision to explain the agreement which is required by Regulation 4. I do not think the Claimant in this case has been misled as to his liability for costs. The obligation of a solicitor acting under a CCFA is to explain to the litigant the consequences of the CCFA so far as the claimant is concerned. By emphasising his costs free position the solicitors appear to have done that correctly. As they say, the change from the previous funding arrangement to a CCFA has no adverse consequences for him. Their relationship remains unchanged. In this context it is not necessary to dwell upon the notional liability which it is necessary to attribute to the Claimant in order for the CCFA to work. Nor do I think is it necessary for the solicitors to explain the position that would obtain if they were to continue acting for the Claimant during any period in which the trade union had withdrawn its indemnity. It is unreal to imagine that the solicitors would continue acting for him in that period without at that stage requiring a change in the financial arrangements.

In reaching this decision I have not treated the evidence described in paragraph 25, above, as having only minimal weight. However, I do not think this evidence significantly increases the strength of the Defendant’s case. It merely corroborates the evidence described in paragraphs 15 and 18, above.

On this issue I find for the Defendants. The letter dated 27 June 2002 (see paragraph 26 above) does provide some evidence that the Claimant’s solicitors have failed to draft a valid CCFA with the trade union. Although that evidence is not strong, it would be wrong to characterise the Defendants’ reliance on it as fanciful. I accept the submission that, at the very least, it raises a doubt.

Turning to Mr Regnier’s statement (see paragraphs 31 and 32 above) I do not think this provides further evidence in support of the Defendants’ case. The statement does not show that Mr Regnier has misunderstood the mechanics by which success fees are payable. The first two sentences in paragraph 3 describe the topic he wishes to deal with (the premium equivalent recoverable under Section 30 of the Access to Justice Act). The long final sentence explains that the trade union has made arrangements for recovery of this amount in the same document that provides for the recovery of success fees, ie, the CCFA. Although it is not essential for a CCFA to deal also with recovery under Section 30, it is not inappropriate to do so and it would certainly to be convenient given that both matters will arise together on every occasion the agreement is invoked.

The information sheet and the letters to the Claimant and to another employee (see paragraphs 15, 18 and 25 above) do not assist either party’s case on this issue. Those documents give a sufficient explanation of the recipient’s liability for costs whether or not the CCFA is valid.

The Claimant sought to prove the validity of the CCFA by reliance upon the certificate in the bill (see paragraph 4 above) and the witness statement of Mr Thompson (see paragraph 6 above). However, I do not find those pieces of evidence sufficient answer to answer the real issue which the Defendants have raised. I do not think it would do broad justice in this case to decide this question in favour of the Claimant without first calling upon him to produce the CCFA itself. Although it is open to him not to produce it but to produce other evidence instead it is difficult to imagine what that other evidence would be. The evidence produced for him so far has not been sufficient.

I appreciate that each side may now need time to consider their position and to consider whether to seek permission to appeal or cross appeal any part of my ruling. I have therefore listed this case for a further hearing on Wednesday 12 February 2003 at 10.30 am and I extend the time for bringing an appeal to a period of 14 days commencing on 12 February. At the next hearing I will deal with the question of the costs of the proceedings before me so far, permission to appeal and directions for the further conduct of the detailed assessment herein.

At the hearing before me this morning the CCFA in question was produced to me in two forms: a full copy and a copy from which certain paragraphs had been redacted as being both confidential and irrelevant to the issue before me. The Defendants raised no issue as to the redactions, being content to rely instead upon me checking them. Having examined the redacted version I made a provisional ruling that the CCFA was valid and enquired of the Defendants whether they accepted that ruling or wished to check the CCFA for themselves. The Defendants did not accept my ruling and therefore, with the Claimant’s consent I handed the redacted version to them. After a short adjournment the Defendants decided to accept the provisional ruling I had made. During that adjournment I checked that the redactions which the Claimant’s legal representatives had made and found them to be fair and appropriate.

In the result, my decision is that the Claimant is entitled to recover success fees in this case subject to questions of quantification of base fees and the reasonableness of the percentage increase claimed. If those questions cannot be agreed they will be determined by me at a further hearing on May 20 2003 at 2.30 pm.

I awarded to the Defendants 50% of their costs of and incidental to the detailed assessment to date. These costs were agreed in the sum of £3,500, which sum will be taken into account in any final costs certificate I issue herein.

Neither party sought any permission to appeal.