Insurance Medical Reporting Ltd & Anor v Your Lawyers Ltd [2018] EWHC 1632 (Ch)

[2018] EWHC 1632 (Ch)Case No HC-2017-002624
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 3/7/2018
Before
MASTER CLARK
Between
(1) INSURANCE MEDICAL REPORTING LIMITEDClaimants(2) CAPITA MEDICAL LIMITEDClaimantYOUR LAWYERS LIMITEDDefendant
Laura John (instructed by DMH Stallard LLP) for ClaimantsCraig Ulyatt (instructed by Russell-Cooke LLP) for DefendantHearing Hearing date: 14 June 2018
Judgment ApprovedMaster Clark:
[1]This is my judgment on the claimants’ application dated 16 May 2018 for summary judgment against the defendant.

Parties and the claim

[2]The claimants are medical reporting organisations. They supply medical reports and other ancillary services such as screening, rehabilitation, physiotherapy and diagnostic services to law firms in relation to personal injury and other claims.[3]The defendant (“D”) is a law firm that specialises in personal injury, clinical, medical and dental negligence claims; and consumer action and group action claims. It is a medium-sized firm with 33 full-time staff (including 9 solicitors and 3 legal executives) but has a very high volume of cases. It currently has approximately 13,000 live cases, including representing over 10,000 claimants in the Volkswagen Emissions High Court Group Action.[4]The parties’ commercial relationship goes back to 2008. However, it is common ground that the contractual basis of their relationship is now contained in an agreement dated 22 August 2011 entitled ‘Agreement for the Provision of Medico Legal Services’ (“the Agreement”) between the first claimant, Insurance Medical Reporting Limited (“C1”); and that this applies retrospectively to past instructions. The Agreement falls into two parts, considered below.

Credit Agreement for the Provision of Medico Legal Services

[5]The first part of the Agreement is entitled ‘Credit Agreement for the Provision of Medico Legal Services’ (‘the credit agreement’). It contains the following relevant provisions:
“2. AGREEMENT 2.1 [C1] agrees to provide medical related services (‘the services’) to [D] upon its standard terms of trading, a copy of which is annexed to this agreement, and on the credit terms set out in this agreement. 2.2 [D] agrees to pay [C1]’s invoices within 30 days of costs being received by the claimant (or by [D] on behalf of the claimant) in settlement or determination of his or her action. 2.3 Payment of the medico-legal charges to be made on case settlement - for the avoidance of doubt this means payment when paid (subject to clause 2.2), if paid and includes a full write-off facility including invoices relating to all DNA charges. 2.4 The due date of payment of any sum due under this agreement is as determined under clauses 2.2 and 2.3. 3. TERMINATION 3.1 Upon termination of the supply agreement for whatever reason [D] remains liable to pay to [C1] all the sums outstanding under this Agreement upon the credit terms provided at clauses 2.2 to 2.4 and in so far as is necessary to give effect to these causes this Agreement shall remain in force.”

Terms & Conditions of Supply for the Provision of Medico Legal Services

[6]The second part of the agreement is entitled “Terms & Conditions of Supply for the Provision of Medico Legal Services” (“the supply terms”) and contains the following relevant provisions: “1. INTERPRETATION … Contract: the Customer’s request for Services and the Supplier’s acceptance of it Customer: the person, firm or company ordinarily being a solicitor or claims management company who purchases Services from the Supplier Services: the services to be provided by the Supplier under the Contract as set out in the Letter of Instruction [I note that ‘Letter of Instruction’ is not defined.] Supplier: [C1] or any subsidiary company 2. APPLICATION OF CONDITIONS 2.1 These Conditions shall: 2.1.1 apply to and be incorporated into the Contract … 3. OBLIGATIONS 3.1 The Supplier shall use reasonable endeavours to provide or procure the provision of the Services, and to deliver the Reports to the Customer, in accordance in all material respects with the Letter of Instruction. … 4. CUSTOMER’S OBLIGATIONS 4.1 The Customer shall use reasonable endeavours to: 4.1.1 cooperate with the Supplier in all matters relating to the services; 4.2.2 provide to the Supplier, in a timely manner, such information as the Supplier may reasonably require and ensure that it is accurate in all material respects; … Contract: the Customer’s request for Services and the Supplier’s acceptance of it [I note that ‘Letter of Instruction’ is not defined.] Supplier: [C1] or any subsidiary company 4.2.2 provide to the Supplier, in a timely manner, such information as the Supplier may reasonably require and ensure that it is accurate in all material respects; … 5. CHARGES AND PAYMENT 5.1 In consideration of the provision of the Services by the Supplier, the Customer shall pay the Charges and the Supplier shall invoice the Customer for the Charges, subject to the credit agreement.

Supplier: [C1] or any subsidiary company

[7]In April 2011, C1 was acquired by Capital Medical Limited (‘C2’) (which is part of the Capita group); and on 1 April 2013, C1 transferred its rights under the Agreement to C2. For the purposes of this application, it is not necessary to distinguish between the two claimants.[8]Since 2008, the claimants have sent D invoices (which they refer to as “Requests for Payment” or RFPs) with a value of over £5 million. D has paid the claimants about £3 million, and requested write-offs of around £300,000.[9]On 6 November 2015, C2 wrote to D, setting out that the claimants’ outstanding invoices totalled around £2.5 million and complaining that D had failed to engage with the claimants’ requests to agree a process for reconciling the outstanding amount. The letter also set out that D had refused to agree to the claimants’ revised standard terms and conditions. It concluded by stating that the claimants would not be accepting any further instructions from D.[10]In January 2016, Premier Medical Holdings Limited (“PMH”) acquired C2 from Capita plc. The claimants’ evidence is that at that time PMH quickly identified D’s account as a “problem” account. The claimants complain of a lack of engagement with them by D; and the evidence includes email queries by the claimants not being answered in May and June 2016, and in August 2016 Mr Plemper of D cancelling a meeting to discuss the claimants’ account on one day’s notice.[11]On 9 February 2017 the claimants’ solicitors wrote a letter before claim enclosing an electronic template Statement of Account which it required D to complete. The letter included the following:
“[C2]’s records show that £2,118,073.28 of its fees (after taking into account unallocated cash) remain unpaid. These relate to about 6,000 RFPs. [C2] believes that many of personal injury claims relating to these RFPs may have failed or been abandoned. Our client has repeatedly asked you to cooperate in a reconciliation process and provide information so that the status of each of these cases can be determined. Without this reconciliation our clients records remain open. Your refusal to cooperate with our client and provide the required information to enable a reconciliation to take place is a breach of Condition 4 of the [supply terms].”
[12]D replied on 13 March 2017:
“We are not opposed, in principle, to considering any reasonable request for information by your client. However, in order for us to consider such a request, you firstly need to properly particularise the information they require and provide us with an electronic Statement of Account that provides sufficient information before the same can be properly considered.”
The letter raised various queries in respect of the Statement of Account provided by the claimants. It also stated that the claimants were requiring information on 4,851 cases, and that this was a task that could not be completed within the one month period the claimants were requiring.[13]The claimants’ solicitors responded by letters of 30 March 2017 and 21 April 2017. They disputed that the amount of work required to complete the account was as extensive as D was suggesting. They provided further information to clarify what was sought by them. They were willing to allow further time for the information to be provided, but sought its provision in batches over a 7 week period.[14]D did not respond to these letters, notwithstanding several chasers by letter, email and telephone. Finally, on 8 August 2017, the claimants’ solicitors sent the draft particulars of claim to D, and asked it to complete a revised electronic Statement of Account, failing which proceedings would be issued. D did not respond to this letter either, and the claim was issued on 6 September 2017.[15]The particulars of claim set out that as at 31 July 2017 the claimants had submitted approximately 3,700 invoices in a total value of £1,845,903.56. The relief sought by the claimants is set out in paragraph 15 of the particulars of claim: “the Claimants seek an account in respect of its outstanding fees pursuant to Condition 4 of the [supply terms], together with the provision of supporting documentation. The form of account sought by the Claimants is set out in Annex 1 to these Particulars of Claim: such document having been provided to [D] but not filled in by it. Each request for information in this Excel spreadsheet already includes the following information to enable [D] to identify the relevant files and provide the requisite information:(i) [D]’s reference number;(ii) the particular personal injury claimant’s full name;(iii) the Claimants’ reference;(iv) the date the RFP [or invoice] was sent to [D]; and(v) the amount of the invoice, the amount paid (if any) and the amount outstanding.[16]A paper copy of Annex 1 was not in evidence before me. A revised and updated version was exhibited to the witness statement dated 16 May 2018 of Gavin Sampson (the finance director of PMH) in support of the claimants’ application. Mr Sampson describes it as amending and limiting the request for the Account. It also reflected payments and information received from D after service of the particulars of claim.[17]A further version of this document setting out the position as at 11 June 2018 was produced at the hearing. It contained the following headings of information and documents sought by the claimants (which I refer to by the letters used by the parties):
“All cases K: Cases where the claimants have been paid nothing: Please state if [D] has recovered any of its legal fees and provide copies of the supporting accounting information relating to the file L: If [D] recovered its legal fees, please provide the correspondence and evidence relating to the claim for [D]’s legal fees and the claimants’ fees M: Successful cases where [D]’s legal fees are still being negotiated with (or payment is awaited from) D in the PI claim N: Case status: ongoing, successful or failed O: Cases where a small fraction of the sum due has been paid to the claimants: Please state why the outstanding amount was not recovered and provide the correspondence in evidence relating to the claim for [D]’s legal fees and the claimants’ fees P: If [D] believe some or all of the outstanding amount in column I [invoiced amounts which the claimants have recorded as unpaid] has been paid to the claimants or PMG as their agent, please state when and how much and provide copies of the supporting accounts/banking information Q: If ongoing, please specify date time was last recorded on file and provide supporting accounting information. Cases transferred to another law firm R: Who was the case transferred to S: When was the case transferred”
Please state if [D] has recovered any of its legal fees and provide copies of the supporting accounting information relating to the file N: Case status: ongoing, successful or failed Please state why the outstanding amount was not recovered and provide the correspondence in evidence relating to the claim for [D]’s legal fees and the claimants’ fees Cases transferred to another law firm R: Who was the case transferred to S: When was the case transferred”

R: Who was the case transferred to

[18]As at the date of Mr Sampson’s witness statement (16 May 2018), the claimants had 1,618 invoices outstanding with a total value of £1,613,520. As at 11 June 2018, the outstanding invoices had fallen to 1,310 with a total value of £1,583,686.81.[19]The Defence (dated 7 November 2017) denies that the claimants are contractually entitled to the information sought in the claim - this is a point of construction of clause 4 of the supply terms, which is considered below.[20]D accepts in its Defence that the credit agreement includes a (limited) implied term (“the Implied Term”) that it would within a reasonable time comply with any reasonable and proportionate requests for information necessary to determine whether fees charged had fallen due for payment ((Defence §13.2), which information was limited to (Defence §13.3):(1) the current status of the particular case in question, namely whether is or had been (i) ongoing, (ii) settled, (iii) won at trial, (iv) lost at trial, or (v) abandoned; and(2) in respect of successful cases, the sum that D had received in respect of the claimants’ fees.[21]It asserts that it would (and has told the claimants that it would) comply with any such reasonable and proportionate requests. It admits that the claimants have requested it on more than one occasion to engage in a reconciliation process. However, D denies that the information sought by the claimants is reasonable and proportionate. In particular, it asserts (at §15.2 of the Defence) that:(1) the cases that the claimants wished to include within the proposed reconciliation included many cases where information had already been provided by D in accordance with its usual practice;(2) the information sought by the claimants in the proposed reconciliation included additional information beyond that set out in paragraph 20 above and to which the claimants are not entitled, including information that is subject to legal professional privilege;(3) the full proposed reconciliation sought by the claimants would take between approximately 450 and 600 hours complete (based on estimate of 15 to 20 minutes per case for 1,783 cases); and this was disproportionate.[22]The claimants’ application was issued 4 weeks before the costs and case management conference on 14 June 2018 and listed to be heard at it. In a letter dated 7 June 2018 (“the Open Offer”), D offered on an open basis to provide reports as to the following case categories:(1) “Awaiting Closure”: the claim has been to trial or settled and D’s costs have been paid or in which the claim has been abandoned but in both instances the file is awaiting formal closure;(2) “Costs”: the claim has been to trial or settled but D’s costs have not yet been paid;(3) “Live”: the claim is ongoing and has not yet been to trial, settled or been abandoned;(4) “Transferred”: cases transferred to other solicitors. The above information was offered to be provided on a rolling, monthly basis in reports relating to 200 cases per month. The offer concluded by inviting the claimants to withdraw their application for summary judgment.[23]The letter also set out that since September 2017 the following events had occurred and had not been fully reflected in the account exhibited to Mr Sampson’s witness statement:(1) D has made payments to the claimant of approximately £215,000;(2) D has notified the claimants of approximately 50 cases that have been settled; and(3) D has notified the claimants of approximately 80 cases that have been written off.

Issues in the claim

[24]In these circumstances the following issues arise in the claim:(1) Construction of clause 4.1.2 of the supply terms (‘the information clause’): whether the expression “such information as the Supplier may reasonably require” refers to any information, including information as to the claimants’ outstanding invoices; or whether it is limited to information in respect of the ‘Services’ as defined in the supply terms (‘the construction point’);(2) If the expression does extend to information in respect of outstanding invoices, the nature and extent of the information to which the claimant is entitled;(3) Whether D is in breach of the information clause;(4) If so, what is D required to do to perform its obligations under the information clause;(5) If the information clause does not extend to information in respect of the claimants’ outstanding invoices, the nature and extent of the information to which D is obliged to provide pursuant to the Implied Term;(6) Whether D is in breach of the Implied Term;(7) If so, what is D required to do to perform its obligations under the Implied Term. The parties’ submissions focused on the construction point and the information and documents to which the claimants are entitled either under the information clause or the Implied Term.

Summary judgment – the legal principles

[25]The principles to be applied on applications for summary judgment are well established. They were summarised by Lewison J, as he then was, in Easyair Ltd v Opal Telecom Limited [2009] EWHC 339 (Ch), in a formulation approved in a number of subsequent cases at appellate level, including AC Ward & Sons v Catlin (Five) Limited [2009] EWCA Civ 1098 and Mellor v Partridge [2013] EWCA Civ 477. It is unnecessary to set them out here.

Preliminary discussion

[26]Before turning to the parties’ submissions, it is necessary to consider more broadly the nature of the Agreement. The Agreement is for the supply of services. It creates a relationship of debtor and creditor between D and the claimants, subject to the “pay when paid” provisions in clause 2.3 of the credit agreement. Thus, although D recovers sums respect of the claimants’ services from the defendant in the claims in which it acts, those sums are not received by it as agent for the claimants, nor does D hold them on trust for the claimants. The relationship between the parties is not therefore one which of itself gives rise to a duty to account. Such an obligation could only arise as a matter of express (or implied) contractual obligation.[27]I turned therefore the information clause itself, assuming for the moment that it is to be construed in the unlimited way contended for by the claimants.[28]In my judgment, the information clause does not create an obligation to account, nor does it render D an accounting party. This is because the obligation contained in the clause is qualified into two significant respects: firstly, D is only required to use reasonable endeavours to provide the relevant information - there is no absolute obligation; and secondly, the obligation is limited to information which the claimants reasonably require. It follows, in my judgment, that the relief sought in the particulars of claim, namely “an account” in respect of the fees invoiced by the claimants is not the appropriate form of relief in respect of D’s alleged breaches of the information clause. This is not just a matter of the name given to the relief sought, but relates to its substance. The claimants are only entitled to require the defendant to use its reasonable endeavours to provide information reasonably required by them. To succeed in a claim based on the information clause, the claimants would in my judgment need to plead and prove:(1) that they had required D to provide information;(2) that the information was reasonably required;(3) that D had not used its reasonable endeavours to provide it;(4) what acts by D would be reasonable endeavours. It is not sufficient for the claimants to plead the Agreement, and their requests, and simply seek an account.[29]This conclusion is determinative of the claimants’ application; but, in case I am wrong about this, I deal with the other issues arising in the application.[30]I turn firstly to consider the nature of these contractual obligations contained in the information clause. “Reasonable endeavours”[31]I was not addressed (or referred to any authorities) by either side as to the nature of an obligation to use reasonable endeavours.[32]Some guidance is to be found in Chitty on Contracts (32nd edn) at para 13-064:
“The approach adopted to the construction of general words is that they are to be restricted according to the nature of the circumstances or of the person. Thus, where a railway company agreed efficiently to work and repair the railway and works demised, it was held that the word “efficiently” had to be construed according to the resources and powers of the particular company. The same would no doubt apply (subject to the terms of the contract as a whole) to an obligation to take “reasonable steps” or to use “reasonable endeavours”.” and in The Interpretation of Contracts (5th edn) at para 16.07: “Where the contract provides for a party to use best endeavours to obtain a particular result it is considered that he must, if necessary, subordinate his own financial interests under the contract to the obtaining of that result. Where, by contrast, the obligation is an obligation to use reasonable endeavours, he need not do so.”
[33]It is clear from the above that in determining the extent of the obligations imposed by a reasonable endeavours clause, it is necessary to consider the resources and financial circumstances of the performing party. That involves a factual investigation which is unsuitable for a summary process.[34]Similar situations arise when considering whether a defendant is in breach of such clause; and, importantly, what is required of it to perform its obligations. In cases where a defendant has done nothing at all, then it may be possible to conclude on a summary basis that it is in breach of such an obligation. However, in cases where the defendant has taken some steps, but the claimant alleges that they are insufficient to comply with the reasonable endeavours clause, then a factual investigation is inevitable. Such an investigation is also inevitable to determine what is required of a defendant to perform the obligation. The nature of this investigation makes these issues unsuitable for summary determination. “Such information as the Supplier may reasonably require”[35]A similar point arises in respect of this expression. It is in my judgment at least arguable with a real prospect of success that reasonableness in this context requires consideration not just of the Supplier’s position, but also of the Customer’s position, including again its resources and financial circumstances. Again, if a defendant refused to provide any information whatsoever, then it might well be possible to conclude that it was in breach of the clause; but that would be unusual and is not this case. But again, determining what was required to be provided to fulfil the obligation would arguably require consideration of the extent to which the defendant was able with its existing resources to provide what was sought.[36]In addition, even if the claimants establish that D was in breach of the information clause by reason of not having used reasonable endeavours, or not having provided information reasonably required by the claimants, in my judgment, it would not be possible to determine on a summary basis what information should be provided to comply with the obligations of the information clause. This is because to do so would also require the sort of factual inquiry which I have already concluded is inappropriate for summary determination.[37]I turn now to the issues addressed by the parties in their submissions. The construction point: ambit of “such information as the Supplier may reasonably require” Parties’ submissions

The construction point: ambit of “such information as the Supplier may reasonably require”

[38]The claimants’ counsel submitted that I should decide the construction point on a summary basis; as it was a short point of construction which could be determined without reference to the factual matrix.[39]As to the construction of the information clause, she submitted that, on its proper construction there was no limitation on the type of information required to be provided by D. The credit agreement and the supply terms, she said, together formed one agreement. Clause 2.1 of the credit agreement provides that the supply terms govern the provision of the claimant services to D; and the supply terms are incomplete without the credit agreement.[40]The claimants’ counsel contrasted clause 4.1.1, which expressly limits customers obligation to cooperate with the supplier to “all matters relating to the Services”; whilst no such limitation is to be found in clause 4.1.2. Finally, she referred to clause 4.3 which does not relate to provision of the Services, but is a non-solicitation clause.[41]These considerations, she submitted, showed that clause 4.1.2 was unlimited in its scope and included information as to outstanding invoices for services provided by the claimants.[42]D’s counsel submitted that I should not decide the point of construction, only whether D had a real prospect of success in establishing its construction of the clause.[43]He submitted that, on its proper construction, the information clause was limited to requiring D to providing information in respect of “Services” only, and did not impose any further obligation after the Services had been provided. In support of this he made the following submissions.[44]Firstly, he said the Agreement consisted of 2 separate contracts: a principal contract (the supply terms) and a separate collateral contract (the credit agreement). The 2 agreements have separate cover sheets and are separately signed by the parties; they have separate provisions as to their governing law; and the credit agreement provides (at clause 3.1) that, even if the supply agreement terminates, D remains liable to the claimants for outstanding sums due under the credit agreement. The inference to be drawn from this, he submitted was that the parties intended the agreements to be separate and freestanding. If there was no credit agreement, the supply terms would stand alone and would immediately create a present debt. The credit agreement transforms this debt into a contingent debt, whereby the obligation to pay the claimants is contingent upon D being paid. As for clause2.1 of the credit agreement he submitted it was explanatory of clauses2.2 and 2.3.[45]Secondly, he submitted that the provisions of the supply terms showed that the information clause was limited to information in respect of the “Services”. Clause 2.1 of the supply terms provides that they apply and are incorporated into “the Contract”, which is defined as “the Customer’s request for Services and the Supplier’s acceptance of it”. “Services” are defined as “the services to be provided under the Contract as set out in the Letter of Instruction” (an undefined term).[46]Turning to clause 4 of the supply terms, which is headed “Customer’s Obligations”, D’s counsel submitted that these were the obligations under the Contract; and were therefore in respect of and limited to the provision of Services. “Information” could, he submitted, only therefore be the information necessary to enable the claimants to provide the Services (usually a medical report) e.g. the medical history, X-rays, scan results.[47]This construction was, he submitted, supported by clause 4.2 of the supply terms, which exempts the Supplier from liability where it cannot perform its obligations under the Contract because of a default by the Customer.

Discussion and conclusions on the construction point

[48]In my judgment, the point of construction arising in respect of the information clause is not suitable for summary determination. In particular, I am not satisfied that all the evidence necessary for the proper determination of the question is before me. There is no evidence of any detail as to the factual matrix in which the supply terms were entered into, including the context in which the word “information” was used by the parties. In addition, I am not satisfied that the arguments put forward by D’s counsel have no real prospect of success. The Implied Term[49]The claimants’ counsel submitted that D’s acceptance in its Defence of the Implied Term was an admission that the claimants were entitled to an account in the form sought by it.[50]I note firstly that just as the information clause does not in my judgment give rise to an entitlement to an account, neither does the Implied Term for the similar reasons: the nature of the obligation is not one of accounting but of responding (in a qualified way) to requests for information.[51]In response to the claimants’ counsel submissions, D’s counsel submitted that there had been no admission by D that the claimants are entitled to the information they seek, and that the Implied Term differs relevantly from the obligation asserted by the claimants:(1) it is limited in terms of volume, and expressly excludes a complete reconciliation of the entire portfolio;(2) it is limited in terms of information to whether or not the fee has fallen due, without provision of any explanation or documents as to why it has not fallen due.[52]D’s position, as set out in its Defence, is that the claimants are not entitled under the Implied Term to a full reconciliation of all outstanding invoices, because this would not be reasonable or proportionate; or necessary for the claimants to determine whether or not invoices in respect of any particular case had fallen due for payment. The reasons why defendant asserts that full reconciliation would not be reasonable or proportionate are set out in para 21 above. They give rise to factual issues which are unsuitable for summary determination, particularly as to the length of time which it would take the defendant to carry out the full reconciliation.

The Open Offer

[53]The claimants’ counsel also submitted that the Open Offer was an admission that the information offered to be provided in it was “reasonably required by the claimants” within the meaning of the information clause. I reject that submission for two reasons. Firstly, there is no admission within the Open Offer that the information is ‘reasonably required’ by the claimants – the offer is expressed to be made because of the ongoing commercial relationship of the parties. Secondly, the timescale within which information is offered is significantly longer than the timescale within which the claimants say they are entitled to be provided with the information.[54]In these circumstances, the only basis on which the claimants could show their entitlement to the information (or some of it) they seek is if they can show that D has no real prospect of showing that it is not in breach of the Implied Term. Breach of

The Implied Term

[55]D’s position as to breach of the Implied Term may be summarised as follows:(1) the claimants’ requests from 2015 onwards for a full reconciliation have been onerous, and therefore unreasonable;(2) the claimants are entitled to information, but on a scale that defendant with its limited resources is able to provide whilst continuing to carry on its core business;(3) the evidence shows that D has continued to provide the claimants with information, notwithstanding the fact that claimants terminated their contractual relationship in November 2015.[56]In support of proposition (3), D’s counsel relied upon the following: Event Date Value of invoices No. of cases Claim form issued 6 Sep 2017 £1.845 million 1,783 Application issued 16 May 2018 £1.614 million 1,618 Skeleton arguments 12 June 2018 £1.584 million 1,310[57]D accepts that it has refused to provide the total reconciliation sought by the claimants; but its evidence is that it has throughout made payments when it has been paid and provided the claimants with notifications that no sums are due (‘write-off notifications”). Its evidence is also that to provide the information sought by the claimants would be very onerous because of the structure of D’s accounting systems and software, and the consequent need for the information to be obtained by manual review of individual cases.[58]The claimants have filed evidence to the effect that the burden of obtaining the information they seek is not onerous; but that gives rise to an issue of fact which cannot be resolved on a summary basis.[59]The claimants also assert that D failed to engage with it throughout 2016, and between 13 March 2017 and 7 November 2017 (when it served its Defence). As to this, D’s response is that the requests made of it for a total reconciliation of all outstanding cases were not reasonable and proportionate; and that where reasonable and proportionate requests were made, they were responded to: see §17 of the Defence, referring to information provided by Ms Claire McCarthy and Ms Nicola Horne. I am not therefore satisfied that D has no real prospect of showing that it responded to such reasonable and proportionate requests as were made of it. Relief for

Breach of the Implied Term

[60]Finally, I consider the position if, contrary to the above, D is in breach of the Implied Term. The question then arises as to what order should be made to compel D to perform its obligations under the Implied Term.[61]The claimants sought, both before the hearing of the application, and, indeed, in the course of the hearing, to reduce the burden on D of providing the full reconciliation they seek in their particulars of claim. Thus, they have removed from their Statement of Account partial payment cases where the amount outstanding is less than £150; and, in the course of the hearing counsel accepted that they would be content with an order providing for the information in categories M, N, O and R. Their counsel also accepted that the claimants would not be entitled to any information protected by privilege or confidentiality.[62]However, for the reasons explained above, determining what information D is obliged to provide pursuant to the Implied Term requires an investigation into what in all the circumstances is reasonable and proportionate for D to provide. Although, ultimately there was a measure of agreement as to the type of information that could reasonably and proportionately be requested (namely, as set out in §13 of the Defence, the status of a particular case and, in respect of successful cases the sum that D had received in respect of the claimants’ fees), as already discussed, the defendant disputes that the claimants are entitled to this information in respect of all outstanding cases, and disputes the timescale over which the information could reasonably and proportionately be provided. These issues would also require factual inquiry, and are not suitable for summary determination. I am also not satisfied that D has no real prospect of showing that the total reconciliation which the claimants seek exceeds what it is required to provide pursuant to the Implied Term.

Conclusion

[63]For the reasons set out above, I am not willing to grant summary judgment on the claim either on the basis of the information clause or the Implied Term.