Bailey v UK Coal Mining Ltd.

This is an appeal from the decision of District Judge Wallace on 22 December 2008, who found that there had been no breach of Regulation 4(2)(d) of the Conditional Fee Agreements Regulations 2000 in relation to the Claimant’s CFA with his solicitors. Regulation 4, so far as relevant, reads:

“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:

…

(d)

whether other methods of financing those costs are available and if so how they apply to the client and the proceedings in question …”

“Those costs” are the costs of the legal representative payable in accordance with the CFA, and the client’s risk of incurring liability for costs in respect of the proceedings to which the agreement relates.

The Claimant was employed by the Defendant between 1995 and 2003. He claimed compensation for vibration white finger, which he alleged was brought about by his use of vibrating tools in the course of his employment.

UK Coal Mining Ltd was a mine operator, and was a participant in a non statutory compensation scheme involving BERR and other co-defendants. BERR had set up the compensation scheme to deal with vibration white finger claims, similar to the scheme set up to deal with respiratory disease claims. Although UK Coal Mining Ltd and other co-defendants were not part of the scheme, they acted as if they were. Mitting J, who oversees the scheme, ordered that there should be a cut-off date for new applicants in October 2002. In October 2002 the Claimant approached his union to see if he could make a claim under the scheme. The Claimant explained the position in cross examination before the Recorder at trial:

“… I did try to put in a claim through the union at Maltby, but they told me I had missed the knock off date, so I - there was a date after a certain time you could no longer put a claim in. I was told I had missed that date so that is why I brought it privately.”

The “knock-off date” to which the Claimant referred was said by Mr Williams to be in fact the cut-off date imposed by Mitting J, although Mr Friston did not accept that this was necessarily the case.

So far as I am aware there is no evidence as to exactly what passed between the Claimant and his union. Having left his employment the Claimant took advice from a claims handling agency called The Miners Welfare and Compensation Agency (“MWCA”). It appears that MWCA had difficulty in placing the Claimant’s claim with any of its panel solicitors, but again there is no evidence as to the nature of those difficulties. The Claimant’s claim was eventually accepted by his present solicitors in 2004, more than two years after he had initially made enquiries of his union.

It is common ground that the solicitors made no enquiries of the union as to the availability of funding. Mr Friston for the Defendant/Appellant relies on the solicitor’s attendance note dated 19 November 2004 to support his case. He refers to the following passage:

“He [ie, the Claimant] … appreciates that there is a scheme [ie, the BERR scheme] which finished in October 2002. Indeed he consulted NUM in that month and was told that they could not help.”

Mr Friston points out that the District Judge made a finding of fact based on the note:

“That seems to suggest that the solicitor accepted that because the scheme had finished, the NUM would not be prepared to assist.”

In due course the Claimant succeeded in his claim and became entitled to his costs. The parties were unable to agree the costs, and the matter thus came before the District Judge. The District Judge gave judgment in two parts, which Mr Friston refers to as the first judgment and the second judgment. Mr Friston argues that the findings of the District Judge in the first judgment were correct:

“12.

It seems to me that a reasonably competent solicitor ought to have realised that just because there was a statutory scheme which had ended, this did not preclude common law claims and that there may have been other methods of financing and costs other than the CFA and it seems to me it would have been reasonable for that solicitor on behalf of Mr Bailey, the Claimant, to make those enquiries of the union. It may have caused a slight delay whilst an application for legal assistance was put forward but he has certainly to my mind not ascertained whether that method of funding would have been available to the client in these proceedings and it seems to me … that there is a genuine issue here as to whether the Claimant solicitors properly considered whether other methods of financing were advanced …”

There was then an adjournment to enable Stephen Woods, the Claimant’s solicitor, to prepare a witness statement dealing with the enquiries he had made in relation to Regulation 4(2)(d).

The witness statement states that Mr Woods met the Claimant for 2 hours 30 minutes and discussed his work history, development of his symptoms, the likely progression of the claim and funding methods, and the requirement to attend for a medical. The Claimant told him that he had contacted the union and that they had refused to assist him in bringing a claim. Mr Woods went on to explain why he did not take further steps to contact the union:

“8.

… I did not do so because they had refused funding. He had contacted them in time to take part in the scheme claim and I did not believe that the scheme claim was relevant to him. I had presumed that the union had refused him assistance on the merits of the case and those would have included issues of limitation. My view of the case was, it was not straightforward which is why Miner’s Welfare had also not been able to place it.

9.

My opinion of the Claimant was based on the following. I had gone to see him as a response to a robust phone call he had made to the office about his claim. Miner’s Welfare had told me that he had previous claims through the union. I assessed that he had some knowledge of the litigation process – I had no reason to doubt what he had told me.

10.

I solely relied in determining the steps that I would take on those matters told to me by the Claimant rather than any third party.”

In his second judgment the District Judge dealt with the matter in this way:

“11.

The issue is what other steps, if any, should the Solicitors have taken at that stage [ie, 2004] Mr Bailey was self employed. He had made previous claims against UK Coal, or at least one previous claim against UK Coal which had been sponsored by the union and so he knew that union funding was available for claims such as this. He had seen the union in October 2002 and had been refused funding for this claim. Is it incumbent upon the Claimant solicitors to go further than they did and accept what the Claimant told them? The Regulation is to provide information to the client about what other matters of financing those costs are available and if so how they apply to him and the proceedings in question. What the Regulations don’t say is whether other methods of financing those costs are, or might be available, though it is not an analogous situation to, for example, the days when legal aid was available, when you might be eligible for legal aid, “but before I take you on privately I owe a professional duty to you to ascertain whether that legal aid is available”.”

The District Judge continued:

“12.

Here we have a relatively sophisticated client who knew the nature of his claim, knew that it was common law, had made a similar claim with union sponsorship and had contacted the union timeously or reasonably timeously to ask for assistance in this claim and had been refused.”

Mr Friston argues on appeal that the District Judge made errors in law under six heads, and also made an erroneous finding of fact.

Mr Williams for his part, argues that there is no basis on which the Appeal Court ought to reverse what he states is a factual finding that the Respondent’s solicitors sufficiently considered the availability of trade union funding, thereby discharging their obligation under Regulation 4(2)(d). He submits that there is no error of law, nor is it a finding to which no Judge could reasonably have come.

The matter was listed for permission, with the appeal to follow if granted. It was, however, agreed between the parties that the matter should be fully argued, the question of permission being reserved until the end of the argument.

Mr Friston put his appeal under six heads, as set out in paragraph 2 of his skeleton argument. Sub-paragraphs (f) and (g) together make up the sixth head. He submits that his appeal deals with errors of law, and if there is any element of challenging a finding of fact, it relates only to the sixth and final head, namely the finding that the Claimant was a “relatively sophisticated client”.

He took me first to the witness statement of Stephen Woods, the Claimant’s solicitor, dated 12 December 2008, dealing with the Defendant’s assertion that there was a genuine compliance issue to be tried. Mr Woods explains:

“4.

In the event further evidence is required, I can confirm that the case came to me because the union would not deal with the claim. Following that refusal, the Claimant approached the Miner’s Welfare and Compensation Agency, a claims management company. They were not able to place the claim with any of their solicitors but they asked me to look at the case and I agreed to make initial investigations on behalf of the Claimant. I agreed to look at the case as a favour and I have not made any payment for it.

5.

I can also confirm that the Claimant stated in cross-examination at the trial that the NUM put him in touch with Rayleys Solicitors who told him that they would not take on the claim because he was “too late”.

6.

I will also confirm that I undertook all the necessary checks, as indicated in the legal advice declaration attached to the Part 18 replies …”

Cameron Clarke, a partner with Halliwells LLP acting for the Defendant, made a witness statement in response dated 17 December 2007. He exhibited (at CC1) an extract from the trial transcript where the Claimant was cross-examined. There is no mention in the cross-examination of the Claimant having contacted Messrs Rayleys. The relevant passage of the cross-examination reads:

“Q: Mr Bailey, you worked for the Defendant company between December 1995 and May 2003. Is that right?

A: I did yes.

Q: Did you make any legal claims against them whilst you were working for them?

A: I had two claims against the company, one for a broken foot and one for a blue coal scar on my leg.

Q: I think subsequent to leaving the company you brought this claim. Is that right?

A: That’s correct. I did try to put a claim in through the union at Maltby, but they told me I had missed the knock-off date, so I – there was a date that after a certain time you could no longer put a claim in. I was told I had missed that date, so that’s why I brought it privately.”

Mr Clarke further exhibited Messrs Woods’ letter of claim dated 2 July 2003, written in accordance with the pre-action protocol for disease and illness claims. The letter states that the Claimant was employed as an underground coal face worker between 1995 and 2003, and that he was exposed to vibration while using air picks, side borers, methane boring rigs and impact tools throughout each working day. The letter continues:

“From the information we have at present the Claimant:-

(a)

first became aware of his symptoms gradually during the period up to October 2002;

(b)

first believed that the problem might be due to exposure leading to this claim in October 2002; and

(c)

suffers with numbness in the tips of his fingers and his grip has been affected. The symptoms are worse in cold weather.”

Mr Friston raised the question whether “knock-off date” referred to limitation, which had begun to run in about 2002, or to the cut-off date of the BERR Scheme.

As Mr Woods points out in his witness statement he received this case from MWCA Ltd, who describe themselves as “leading specialists in occupational diseases”. They supplied Mr Woods with the Claimant’s employment history from leaving school to the present date.

Mr Friston referred me to exhibit CC3 of Mr Clarke’s witness statement, which was a report from the Northern Echo dated 16 December 2008, headed:

“Struck off lawyer runs claims agency for disease victims

A former solicitor whose company targets would-be industrial disease claimants was previously struck-off for fiddling the books, the Northern Echo can reveal …”

The article continues in similar uncomplimentary manner. Mr Friston suggests that since the claims company was “disreputable” this was relevant to the reliance which could be placed on what MWCA Ltd said.

The Claimant was successful at trial, and on 31 August 2007 the Recorder gave judgment in his favour in the sum of £10,550, together with costs, to be assessed if not agreed.

On the detailed assessment District Judge Wallace first dealt with the question whether the Defendant had made out a genuine issue as to compliance which needed to be examined (see paragraph 9 above).

There was then an adjournment, during which time the Claimants’ solicitor, Mr Woods, made a further witness statement dated 22 December 2008 which I have quoted at paragraphs 11 and 18 above.

Having considered this statement, and heard further submissions, the District Judge gave his second judgment. He referred (at paragraph 3) to the solicitor’s attendance note of 19 November 2004 when he attended on the client. The District Judge quoted part of it:

“I also explained the procedure. He knows that Alan Squires has been paid out, as have many others. He appreciates that they work for British Coal. He also appreciates that there is a scheme which finished in October 2002, indeed he consulted the NUM in that month and was told they could not help.”

It is clear from Mr Woods’ statement of 22 December 2008 that he had been under the impression that because the Claimant was not a British Coal employee he was not eligible under the BERR Scheme. That assertion was not accepted by the Defendants, and the District Judge did not rule on it. It does appear with hindsight, however, that the Claimant was eligible under the scheme as an employee of UK Coal Mining Ltd.

Having quoted further from Mr Woods’ witness statement, the District Judge continued in his judgment (at paragraph 8):

“That is the nub of the matter; the union had refused to assist him in bringing the claim. Again we need to deconstruct that; is that the claim under the scheme or the common law claim which he brought in this court? Well we don’t know from the evidence before us.”

Having quoted the second of the two paragraphs 8 in Mr Woods’ statement, the District Judge continued:

“We know that the particularly claims handling agency had not been able to find a solicitor to take the claim on.”

I have already quoted paragraphs 11 and 12 of the judgment, at paragraphs 12 and 13 above. He continued:

“13.

It seems to me that in the light of this factual matrix, there has been compliance with Regulation 4(2)(d), there isn’t an obligation to go further in the circumstances of this case and to make what is, or would have been analogous to a legal aid application to the union.”

Mr Friston submitted that this second judgment must be looked at, in the light of the finding in paragraph 12 of the first judgment, which I have quoted at paragraph 9 above, ie, “that it would have been reasonable for that solicitor on behalf of Mr Bailey, the Claimant, to make those enquiries of the union.” He submits that because there has been no cross-appeal in respect of that finding, it is not at large on this appeal. Mr Williams’ answer to this suggestion was that since the judgment was in the Claimant’s favour there was no reason for a cross-appeal.

In my judgment the District Judge was considering [in the first judgment] whether there was a genuine issue to be tried. Having received further evidence and submissions he gave the second judgment. In my view the first judgment, given in the absence of that relevant material cannot limit the scope of the second judgment.

Mr Friston’s first ground of appeal was that the District Judge had applied the wrong legal test in arriving at his conclusions, in that he appeared to have made a distinction between a duty to investigate potential sources of funding, and a duty merely to identify those potential sources. In Mr Friston’s submission the purpose of Regulation 4(2)(d) is to ensure that clients receive proper and reasonably complete advice about funding. He suggests that the District Judge had distinguished between the solicitor’s duty in respect of legal aid, and some lower duty. This, he says, is contrary to the Regulations, contrary to authority, and contrary to the first judgment. (This third point must fail for the reasons I have given.) What is required is that the solicitor should make reasonable enquiries of potential funders. He submits that the words in Regulation 4(2)(d) “whether other methods of financing those costs are available, and, if so, how they apply to the client in the proceedings in question” mean that reasonable and proportionate enquires are necessary, and that the relevance of the enquiries made must be explained to the client. This, he said, is exactly the same standard as is required in respect of legal aid enquiries.

Mr Friston’s second ground is that the District Judge made an error of law, in that he failed to apply the entirety of Regulation 4(2)(d), in particular that part of the Regulation which imposes a duty on the claimant’s solicitors to advise how the alterative methods of funding applied to the claimant. In support of this submission Mr Friston relies on the judgment of the Court of Appeal in Myatt & Ors v National Coal Board [2006] EWCA Civ 1017; [2007] 1 WLR 554 at paragraph 77, where Dyson LJ stated:

“77.

It follows from the calibrated approach that we have suggested at paras 72-76 above that we do not consider that it is possible to give rigid guidance as to the questions a solicitor should ask in every case. In particular, in our judgment a solicitor is not required in every case to ask the client who says that he has a home, credit card or motor insurance or is a member of a trade union to send him the policy or trade union membership document ... In some circumstances, it is reasonable for the solicitor to ask the further question whether the insurance covers legal expenses and to rely on the answer given by the client without further ado. In yet other cases, it is even reasonable to ask the client to answer what we have called the ultimate question.”

This passage, Mr Friston submits, implies that enquires are necessary and that it is not sufficient to rely on what the Claimant says as to the unavailability of union funding. There was, he says, a doubt as to whether the information given by the Claimant was correct. Therefore the solicitors were under a duty to make enquires, and the District Judge was wrong as to the level of enquiries which were necessary.

Mr Friston went on to argue that if the District Judge did approach the matter on the basis that there were two standards of reasonableness, this would leave a lacuna between the two standards: namely an area of uncertainty in which funding may or may not exist, so that the Claimant could be exposed to the risk that he would fail to make use of a reasonably available alternative means of funding. On that basis Regulation 4(2)(d) required that the Claimant be informed of that risk, ie, how the other methods of financing applied to the client and the proceedings in question. The CFA was not a CFA lite, nor, unusually, was the ATE policy self insuring. Mr Friston suggests that the total additional liability would be at least £30,000. The District Judge does not deal with this point in his judgment.

Mr Friston’s third point is that the solicitors allowed the Claimant to ask what the Court of Appeal in Myatt called “the ultimate question”. At paragraph 72 of Myatt Dyson LJ sets out a non exhaustive list of factors, as to the steps that a solicitor should reasonably take to discharge his obligation (under Regulation 4(2)(c)):

“72.

First, the nature of the client. If the client is evidently intelligent and has a real knowledge and understanding of insurance matters, it may be reasonable for the solicitor to ask him not only (i) whether he has credit cards, motor insurance or household insurance or is a member of a trade union, (ii) whether he has legal expenses insurance, but also (iii) the ultimate question of whether the legal expenses policy covers the proposed claim and, if so, whether it does so to a sufficient extent. Litigants such as the Myatt claimants and Ms Garrett plainly do not fall into this category: few litigants will. If the solicitor does ask such questions, he will have to form a view as to whether the client’s answers to the questions can reasonably be relied upon.”

Mr Friston submits that the Claimant, as an ex-miner, does not fall into the category of claimants envisaged in Myatt, to whom the ultimate question can be left. He points to the confusion which existed between eligibility under the scheme and the common law claim, confusion over the availability of funding from the union, and confusion in relation to limitation and other issues of law. He suggests that the first of these confusions required the Claimant’s solicitors to contact the union, since it was not known whether the answer which the Claimant received when he made enquiries was in relation to the scheme claim, or a common law claim. At paragraph 8 of his second judgment the District Judge found there was insufficient evidence for him to form a concluded view, therefore the solicitors themselves could not have known.

With regard to the second area of confusion, Mr Friston suggests that the union may have refused the Claimant’s request because the scheme was still in existence, which would have enabled the Claimant to bring his claim without the usual costs.

With regard to the third area of confusion, Mr Woods at paragraph 8 of his witness statement of 22 December 2008 refers to the merits of the case, including issues of limitation. These questions, submits Mr Friston, could not possibly be left to the lay client, since they required the input of a lawyer. The judgment is again silent on the point.

Mr Friston’s fourth ground of appeal, was the fact that two years had elapsed since the Claimant had made enquiries of the union, and he suggests that even if union funding was not available in 2002, it may have become available by 2004. This may have happened because the funding criteria had changed; the Claimant’s condition may have become more chronic than it was in 2002, thereby changing the view that the union would have taken of the matter; and the union may have entered into a CCFA with solicitors who were more willing to take the risk than those that were used in 2002. It was, he argues, unreasonable of the solicitors not to have carried out up to date enquiries, and the District Judge was wrong to find otherwise. There was some confusion about the cut-off date of the scheme, but in an exchange, which occurs at paragraph 9 of the first judgment, it is established that the cut-off date for live claimants was in October 2002.

The fifth head of Mr Friston’s appeal concerns the nature of the case, which in his submission is exactly the sort of case the union could be expected to fund. Therefore, if such funding was likely to be available, it was incumbent on the solicitors to make more enquiries (see paragraph 74 of Myatt). Mr Friston also queries whether it was reasonable to rely on the conclusions reached by MWCA (see Myatt paragraph 76), because of the “disreputable” reputation suggested by the article in the Northern Echo. Again the judgment is silent on this point. In his submission MWCA is disreputable, and there is no evidence as to why other solicitors refused to act, and no evidence that the case was turned down on its merits.

Mr Friston’s sixth and final point is the District Judge’s finding that the Claimant was “a relatively sophisticated client”. He suggests that although the District Judge may have read the solicitor’s file, he had not seen the Claimant in person. This was, he submits, a conclusion plucked out of thin air. Although he concedes that there is a stringent test in relation to overturning a finding of fact, there was, he says, no evidence to support this finding. He also says there was nothing to support the finding that the client knew the nature of his claim, or that it was a common law claim. The suggestion that the Claimant had acted “timeously” cut across the solicitor’s evidence that limitation was one of the issues. Mr Friston speculates that the union representative may have been talking about a scheme claim, rather than a civil claim, when refusing to accept the Claimant’s claim; or it may have been some entirely different issue. The issues involved may have been ones which only a lawyer could resolve, and the solicitors themselves may have been in error as to the nature of the BERR Scheme.

Mr Friston also submits that there is no evidence of what would have been the case if union funding had been available, since the Claimant was liable for any shortfall in base costs, there was a considerable potential detriment to the Claimant if union funding was denied.

Mr Williams argues that what is required of a solicitor is to brief his client on factual matters. This may need to be preceded by some enquiries: “Do you have insurance?” “Are you a member of a union?” The enquiries which are necessary will depend on the nature of both client and the claim.

Mr Williams relies on paragraphs [70] – [79] of Myatt. Although that case dealt with Regulation 4(2)(c) and BTE insurance, he accepts that the approach under Regulation 4(2)(d) will be similar. He goes on to argue, however, that there are important differences between the exploration of BTE, and the exploration of trade union funding.

He suggests that, whereas BTE will usually produce a significant cost saving to both client and opposing party, this is not so with union funding. Union funding would invariably lead to additional liabilities being incurred, such as success fees, and charges under Section 30 of the Access to Justice Act 1999. This method of proceeding would, he argues, be no less expensive than CFA funding. It would, in effect, have been a different type of CFA funding. He goes on to argue that whereas the availability of BTE may raise issues of law connected to the construction of policy terms, this is not the case in relation to union funding, which is typically discretionary, and whether it is available is a matter of fact.

In Mr Williams’ submission the factual question for the District Judge was: “In the circumstances of this case was the solicitor’s consideration of union funding so inadequate that, despite specifically addressing it with his client, he should be taken as having breached Regulation 4(2)(d)?” The District Judge’s decision, taking account of the client’s previous litigation experience, that it was not incumbent on the solicitor to question his instructions, was a decision which was plainly open to the Judge. The solicitor was entitled to take at face value the previous rejection of the claim. There was no complex insurance policy to construe, and no significant costs to be saved. The Appellant has not shown that the District Judge was wrong.

Mr Williams points out when the Claimant approached his solicitors in 2004, he had not been a member of the union for some 18 months. In answer to question 2 of the Defendant’s Part 18 request for further information, the Claimant stated that he had been a member of the NUM “between December 1995 and June 2003”.

Mr Friston, who describes this point as Mr Williams’ “best point”, complains that I should not take it into account, since the point had not been taken in the court below. In his submission, there being no Respondent’s notice, the Respondent may not rely on the fact, and I have no jurisdiction to take it into account.

I reject that submission, because CPR 44.5(1) requires the court to have regard to “all the circumstances” in deciding the amount of costs, and the District Judge clearly had the Part 18 requests in mind when he gave his judgment. At paragraph 9 of his first judgment he states:

“Now we know from his Part 18 request that his request for union assistance was made in 2002 …”

Thus although there may not have been specific submissions concerning union membership (I have not seen a transcript of the proceedings before the District Judge), the District Judge was clearly aware of the situation because of the information contained in the Claimant’s replies.

Mr Friston argues that the fact that the Claimant was not a member of a union when he consulted the solicitors is, in any event, not a good point, since he was a member when he originally applied in 2002. He submits, therefore, that there was still a duty on the solicitors to look back from 2004 to 2002. The reason unions do not lightly reject claims is because they receive a referral fee.

When the solicitor heard that the Claimant’s claim was of a type which the union would normally fund, refusal should have struck him as being wrong, and he should have written or phoned to make further enquiries.

Mr Williams points out that the Claimant had made two previous claims through his union, and the solicitors asked the Claimant if union funding was available. He told them it was not. The solicitors had asked the Claimant for his household policy with the Norwich Union, and, having checked it, found that there was no BTE insurance available. They therefore advised the client to enter into a CFA with an ATE policy.

He submits that it was open to the District Judge to find that Regulation 4 had been complied with. Other firms specialising in miners’ claims had already turned down the claim when it was offered to them by MWCA. In those circumstances, he suggests, the information that the union had refused funding would not have come as a particular surprise to the solicitors.

In these circumstances Mr Williams submits that the obligation to explore union funding as part of the Regulation 4(2)(d) duty is relatively restricted. Where the client informs the solicitor that he has made enquiries, and been told that he is not entitled to union funding, Mr Williams submits that it would only be in special circumstances that a solicitor would be obliged to go behind that information. He cites the judgment of the Court of Appeal in Sarwar v Alam [2001] EWCA Civ 1401; [2002] 1 WLR 125 CA [51] that the solicitor’s advice “will necessarily be based on information provided by the client”. He accepts that this may not be the end of the matter in the context of BTE, where a complex insurance policy may require interpretation against the background of potentially significant costs savings, but, in his submission, it should be the end of the matter in the context of whether a union might cover the claim. Mr Friston suggests that Sarwar sets out a number of different tests. He suggests that maybe the Claimant got things wrong, and gave wrong instructions.

Mr Williams further submits that in the present case the Claimant knew about union funding, and had brought claims through the NUM before. His instructions to his solicitor were that the union had declined to support his claim. Thereafter, the Claimant had consulted MWCA, a claims management company. Its attempt to refer the case to panel solicitors failed. Mr Woods has explained in his witness statement how he came to accept the case. In Mr Williams’ submission the solicitor considered the possibility of trade union funding, discussed it with his client and accepted his client’s explanation that it was not available.

He argues that there is no warrant in the wording of Regulation 4(2)(d) for saying that the solicitor’s duty extends to requiring him to approach the union again after an interval of over two years (at a time when the Claimant was no longer a member of that union) and asking the union to consider matters afresh. He argues that no such duty is suggested by the Regulation. On the basis of the information supplied by the client, trade union funding was excluded as an option.

Mr Williams suggests that Mr Friston’s assertion that the claim may have been turned down for a variety of different reasons, or because there was confusion between the claims under the compensation scheme and the common law claim. This he suggests, and I accept, is simply speculation on the part of the Appellant. With regard to this suggestion Mr Friston argues that he has to speculate because it is necessary to look at the potential adverse consequences. Things which seem obvious to a lawyer may not seem obvious to a client.

With regard to Mr Friston’s lacuna point, Mr Williams submits that when the client relies on advice from solicitors, that advice will be based on instructions given by the client. If the advice is Regulation 4 compliant, the client will not be disadvantaged unless he, the client, has given false or misleading instructions.

Mr Williams refers to paragraph 51 of Sarwar, where the court said:

“We deprecate any attempt to equate the question of reasonableness that a Costs Judge has to decide with the question whether the claimant’s solicitor has been in breach of duty to his/her client. If a solicitor gives advice which proves unsound, it will not necessarily follow that the advice was negligent. The advice will necessarily be based on information provided by the client. If the information is inadequate or inaccurate, the advice may prove to be unsound without any question of fault on the part of the solicitor.”

Mr William submits that the duty imposed on the solicitor by Regulation 4(2)(d) is to advise firstly, if other funding options are available, and secondly, if so, how they apply, ie, to set out the pros and cons. The solicitor had interviewed the client with care in respect of BTE insurance. He was told there was no union funding, the Claimant was not a member of the union, other solicitors had refused to act. If they were to carry out still further enquiries Mr Williams asks, rhetorically, who would pay for the solicitors to carry out all this extra work? Relying on the judgment in Hollins v Russell Mr Williams submits that there must be a breach which the client can rely on. Mr Friston argues that the duty under Regulation 4(2)(d) is to explain the pros and cons of funding that is available. The potential shortfall under the CFA should have been explained to the client. Mr Williams further argues that there is nothing on which the Claimant could rely in order to avoid having to pay his solicitors.

He suggests that if the union had thought there was merit in the Claimant’s claim, it would either have provided funding or put it into the scheme, if available, since, in his submission, unions do not lightly reject claims.

Mr Williams accepts that the District Judge’s analogy with the correct approach in legally aided cases is not particularly helpful. He does not argue that there are two separate standards, but states that it was acceptable for the solicitors to rely on the Claimant’s instructions as to union funding.

As to the District Judge’s description of the Claimant as “relatively sophisticated” Mr Williams argues that paragraph 12 of the second judgment must be read as a whole:

“A relatively sophisticated client who knew the nature of his claim knew that it was common law, had made a similar claim with union sponsorship and had contacted the union timeously … to ask for assistance in this claim and had been refused.”

Dealing with “the ultimate question”, even if Mr Friston is correct in his submission, Mr Williams argues that he has to show that the decision of the District Judge was one to which no reasonable Judge could have come. He argues that the submission is not made out in fact, because the Claimant was not asked the ultimate question, ie, “do you have a policy which would cover you for these proceedings”. He was merely asked “Did you ask your union for funding?” To which the response was “Yes I was refused”.

The fact that the claim was not straightforward is illustrated by the fact that there was a fully contested trial on liability on quantum and quantum over three days.

Having heard the submissions, I granted permission to appeal on the basis that Mr Friston had demonstrated that his case was arguable, and therefore had a real prospect of success.

I accept Mr Williams’ submissions that there was no breach of Regulation 4(2)(d) and that Mr Friston has not shown that the District Judge was wrong to so find. His submissions were largely speculative as to what might have happened in other circumstances. I accept that a different tribunal might have decided the issue differently, but the District Judge has not “exceeded the generous ambit within which a reasonable disagreement is possible” (see Tanfern Ltd v Cameron-MacDonald [2000] EWCA Civ 3023 [32]).

The fact that the District Judge’s judgment was silent on a number of the points raised before me, does not of itself mean that he has not considered them, and, in the absence of a transcript of the submissions made to the District Judge, it is not clear if those topics had been raised in a way which required them to be dealt with individually by the District Judge.

The obligation on the solicitor is to give the client advice which is impartial, and which is sufficient to enable the client to make an informed choice between the different methods of funding available to him. I do not accept that the District Judge reached a conclusion which falls outside the range of possible decisions which are reasonable.

In summary, Mr Friston’s grounds of appeal fail for the following reasons. In respect of the first ground I find that the District Judge did not apply the wrong legal test in arriving at his conclusions, nor did he make a distinction between different levels of duty to investigate potential sources of funding. In my judgment the District Judge referred to legal aid as an aside, and not in order to illustrate that there was some lower duty under the CFA Regulations.

Mr Friston’s second point is that the Judge made an error in law, in failing to apply the entirety of Regulation 4(2)(d). The topic of trade union funding was clearly raised with the client. In my judgment the District Judge was entitled to, and did, find that the solicitors had properly relied upon the information given to them by their client, and on the surrounding circumstances: namely that union funding had been refused, the client was no longer a member of the union, and other firms of solicitors had refused to take on the case from MWCA.

With regard to the third point, ie, that the Claimant had been allowed to ask “the ultimate question”, as Mr Williams points out, the question asked was not the ultimate question mentioned by Dyson LJ in Myatt.

The fourth ground of appeal concerned the two years which had elapsed since the Claimant had made enquiries of his union. In my judgment this ground completely ignores the fact that the Claimant was no longer a member of the union, and that firms of solicitors had also refused to take on the case. In practical terms, it was not incumbent on the solicitor to re-open the enquiry. Realistically union funding was not available at the time the solicitors were dealing with the case.

Mr Friston’s fifth head was that the nature of the case was such that the union could be expected to fund it. Whilst that statement may not be controversial, the fact is that the union had refused to fund it, and the District Judge found, properly, that it was not incumbent on the solicitors to make further enquiries. The fact that MWCA may or may not have been a disreputable company, is, in my view, not relevant.

Finally, Mr Friston takes issue with the District Judge’s finding that the Claimant was “a relatively sophisticated client”. The phrase is, however, quoted in isolation. When it is read together with the remainder of the District Judge’s words, the reason for the finding becomes clear. There is nothing in the point.

This appeal appears to be another technical challenge of the type that the Court of Appeal, in Hollins v Russell [2003] EWCA Civ 718, tried so hard to discourage.

This appeal is accordingly dismissed.