PHILLIP LAW v LIVERPOOL CITY COUNCIL [2005] EWHC 90020 (costs)

IN THE LIVERPOOL COUNTY COURT
35 Vernon Street
Liverpool L2 2 BX
[2005] EWHC 90020 (Costs)Case No Case No: 4 LV12238
Between
PHILLIP LAWClaimantLIVERPOOL CITY COUNCILDefendantBERRYBRIDGE HOUSING ASSOCIATION
Before
His Honour Judge StewartMR HUTTON, COUNSEL APPEARED THE CLAIMANTMR WELLS, COUNSEL for THE SECOND DEFENDANTDate 10 May 2005
[1]HIS HONOUR JUDGE S TEWART: This is an appeal by the claimant against the decision of District Judge Henthorn who on the 8th February 2006 made this[2]The factual background to this case is uncontroversial and can be simply stated. On the 26th March 2003 the claimant, a child, tripped on a steel reinforcing rod which protruded from a concrete fence post of a property which had at some stage belonged to Liverpool City Council (subsequently the first defendant). A letter of claim was written to Liverpool City Council and then proceedings were issued With particulars of claim served in January 2004. A defence was served on 4th May 2004. At no stage during any of this did Liverpool City Council suggest the property in question had been transferred from their ownership.[3]However, in about August 2004 Liverpool City Council stated that the property had been transferred to Berrybridge Housing Association on 30 th January 2003; less than 2 months before the accident, as part of a housing stock transfer. As a consequence, and despite the second defendant's denial on 15 th September 2004 that the property had been transferred to them in January 2005 the claim form and particulars of claim were amended to include a claim against Berrybridge Housing Association as second defendant.[4]The claim against the first defendant continued and the matter was settled shortly afterwards with the settlement of £980 approved by District Judge Henthorn on 30 th November 2004 with both defendants acknowledging a liability in principle for costs; subject to any points about the CFA.[5]The issue as to costs then arose, was taken by the second defendant alone and was determined by the District Judge on 8 th February 2006 in relation to the retainer and secondly in relation to the question of apportionment between the defendants; only the retainer issue is raised by this appeal. The claimant's farther and litigation friend had entered into a CFA with the solicitors, Irvings, on 28th March 2003, two days after the claimant's accident. It is in standard Law Society terms and the only relevant part of it, for these purposes, is under the heading "What is covered by this Agreement?" where on the first page it is stated, "Your claim against Liverpool City Council for damages for personal injury suffered on 26 th March 2003".[6]I note that the standard form contains the words "your claim against" and then there is a blank, and then it says, "for damages for personal injury suffered on" and then there is another blank and those blanks as I have said were filled in in this case by: the first blank the words "Liverpool City Council" and in the second case by the date "26 th March 2003".[7]At the hearing, the second defendant took, so far as relevant to this appeal, two points. Firstly that as a CFA had to be in writing and the CFA dated 28 th March 2003 did not mention the second defendant then it could not cover the claim against the second defendant as the CFA was never varied and there was no other retainer between the solicitor and the client in relation to the second defendant. Alternatively that there was a retainer but with no CFA and therefore no success fee. The District Judge decided on the second basis; there is no cross appeal by the second defendant alleging that they are not liable for base fee costs.[8]So, the sole issue is whether there was, at the material times, a CFA agreement covering the claim against the second defendant.[9]The District Judge's decision is in a few short paragraphs of his Judgment. He said this:
"7. Mr Williams has rightly pointed out the the issue is a contractual issue; so what is the contract? It seems to me the contract must be the contract entered into on 28 th March 2003. There is no : other subsequent contract relating to a CFA. Now that contract is to govern a claim made by Irvings on behalf of William with the help of his father, Philip Law, Litigation Friend against Liverpool City Council. It does not say, ' or any other party to whom proceedings will have to be brought'. It seems to me at the time the agreement was entered into it was in the contemplation of both parties that a claim had been brought against Liverpool City Council and at that stage no one else. There is no amendment by way of letter or by fresh agreement to cover Berrybridge Housing Association Ltd when they had been identified as a potential second defendant. 8. In that context I am urged by Mr Williams applying dicta of Lord Hoffman in ISC LTD v West Bromwich Building Society [1998] 1 WLR 896 ; in particular his comments at pages 912 and 913 of the WLR to look at the intention of the parties to look at what they intended to cover and give the words their natural ordinary meaning"
My difficulties so far as the claimant's arguments is concerned is that if one gives the words, 'you are claiming against the City Council for damages for personal injuries' their natural meaning is to cover a claim against that defendant and that 9. Taking on board what Lord Hoffman said and bearing in mind that we have moved away from the old nit-picking approach in relation to commercial documents, I regret that I cannot accede to the claimant's argument that the conditional fee agreement in front of me at the moment covered work done in suing the second defendants. 10. I am grateful to Mr Williams also for the arguments put forward in relation to King v Victoria Insurance Co [1896] AC 250 but I consider the law on CFA's is effectively governed by statute. Statute requires there to be an agreement the construction I have given as to the agreement as to a CFA which concerns or names the second defendants. Therefore there is no CFA agreement in relation to the second defendants, therefore the arguments in King v Victoria Insurance Co do not apply. It therefore seems to me there is no CFA against the second defendants. 11. The second issue is whether or not there is a retainer from the claimants where they wish to carry on the claim against the second defendants. I have not seen any correspondence but I accept what has been said on behalf of counsel for the claimant's solicitors that instructions would have been sought from the claimants before the second defendants were added and that instructions would have been sought from the claimant thereafter from his father - the father more than the son because of the age of the son - on the ongoing case and whether any offers should be accepted. I think therefore that there must have been a retainer with implied terms as to payment. Payment would be the payment obviously without any success fee because there could not be a success in this situation but at the charging rate set out for work done in the original agreement. 12. I therefore conclude on that basis that there was a solicitor and client retainer but no CFA covering the work done by Irvings for the claimant as against the second defendants which will mean that insofar as the second defendants are found liable for breach of the indemnity principle on the part of the claimant's solicitors and they are entitled to costs but obviously no success fee because there is no CFA."[10]The first point which is uncontroversial and accepted by the District Judge in an earlier paragraph in his judgment is that there is no requirement in either Section 58 of the Courts & Legal Services Act 1990 as incorporated and amended in Section 27 of the Access to Justice Act 1999 , nor in the Conditional Fee Agreement Regulations 2000 for an agreement to name a defendant.[11]A conditional fee agreement has to be in writing [see Section 58(3)(a)] and it is upon the CAF agreement in this case that I must determine whether in effect the success fee is allowable. Because as Mr Wells pointed out that is the sole issue; as he pointed out in his skeleton. Here, although the Regulations do not require and opponent to be named in the conditional fee agreement one was in fact named; i.e. Liverpool City Council, the first defendant and not the second defendant. That contract, as I will determine later, was never varied so as to add the second defendant to the agreement.[12]Chitty on Contracts (29 th Edition) at' paragraph 22-033 makes it clear that:
"A contract required by law to be made in or evidenced by writing can only be varied by writing"
. The question therefore is whether at the time of the making of the agreement it was the intention of the parties that the CFA agreement could or would cover a claim against a party other than the first defendant and in particular the second defendant.[13]The Principles of Construction are set out in the same volume of Chitty at paragraph 12-042 and 12-043, " Object of Construction. The object of all construction of the terms of a written agreement is to discover there from the intention of the parties to the agreement..... The Intention of the Parties, The task of ascertaining the intention of the parties must be approached objectively, the question is not what one or other of the parties meant or understood by the words used but "the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract". The cardinal presumption is that the parties have intended what they have in fact said. So that their words must be construed as they stand. That is to say that the meaning of the document or of a particular part of it is to be sought in the document itself. "One must consider the meaning of the words used not what one may guess to be the intention of the parties". However, this is not to say that the meaning of the words in a written document must be ascertained by reference to the words of the document alone, in the modern law the Court will in principle look at all the circumstances surrounding the making of the contract which would assist in determining how the language of the document would have been understood by a reasonable man."[14]Of course it is right, further, that one has to seek the meaning of the words having in mind two important statements of Lord Hoffman. The first in the case of Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd reproduced at Chitty paragraph 12-050, where Lord Hoffman said at page 775, "It is of course true that the law is not concerned with the speaker's subjective intentions but the notion that the law's concern is therefore with the 'meaning of his words conceals the important ambiguity. The ambiguity lies in a failure to distinguish between the meaning of words and the question of what would be understood as the meaning of a person who uses words. The meaning of words as they would appear in a dictionary and the effects of their syntactical arrangement as it would appear in a grammar is part of the material which we use to understand the speaker's utterance. But it is only a part; another part is our knowledge of the background against which the utterance was made. It is that background which enables us, not only to choose the intended meaning when a word has more than one dictionary meaning, but also.... to understand the speaker's meaning often without ambiguity when he has used the wrong words".[15]Again, in the Investors ' Compensation Scheme case Lord Hoffman said this, "Such documents are interpreted by Judges by the common sense principles by which any serious 'utterance would be interpreted in ordinary life. Almost all the old intellectual baggage of 'legal' interpretation has been discarded. The principles may be summarised as follows: i. interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably be available to the parties in the situation in which they were at the time of the contract. ii. the background most famously referred to by Lord Wilberforce as the 'matrix of fact' but this statement is if anything an understated description of what background may include. Subject to the requirement that it should have been reasonably available to the parties and the exceptions to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable msn. iii. (is not relevant.) iv. the meaning which the document (or any other utterance) would convey to a reasonable man is not the ssme thing as the meaning of the words .... the background may not merely enable the reasonable man to choose between the possible meanings: of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax v. the "rule" that words should be given their "natural and ordinary meaning" reflects the common sense proposition that we do not easily accept that parties have made linguistic mistakes particularly in formal documents. On the other hand, if one were to nevertheless conclude from the background that something must have gone wrong with the language, the law does not, require Judges:to attribute to the parties an intention which they plainly could not have had, Lord Diplock made this point more vigorously when he said in Antaios Compania Noverra SA v Salem Reteriana AB [1985] AC 191 p.201. "If detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business common sense, it must be made to yield to business common sense".[16]I mention by way of background that one of the parties to this contract was a solicitor and as has been impressed upon me by Mr Hutton it is a not infrequent occurrence that a claim starts off against a particular defendant and then other defendants have to be added or joined,[17]Having due regard to the above principles, I start off from the strong viewpoint that I do not see how a contract which covers a claim against Liverpool City Council can possibly be construed as a contract to bring a claim against the second defendant. The ordinary and natural meaning of the words, however purposive a construction one uses, does not in my judgment permit this.[18]So I now consider against that viewpoint the points made by the claimant in support of the contrary submission.[19]Firstly, in paragraph 20 of Mr Hutton's skeleton, he gives 2 examples which he said would lead to absurd conclusions in holding that the CFA did not cover the proceedings in question. The 2 examples are as follows:(1) . If the CFA said "a claim for damages n relation to your broken leg suffered on 1 st May 2005" and it turned out that the leg was not in fact broken but only badly bruised, it could no doubt be argued that there was no valid retainer in relation to a claim for a badly bruised leg, only a broken one and there was no broken leg.(2) .If the accident was in fact on 2 nd May not the 1 st , one could conclude again that there was no valid retainer for a claim in respect of the accident on the 2 nd . The examples could continue. I do not accept that there is any real correlation between the point I have to decide and these very precise analogies. I am construing the relevant parts of this contract, if that sort of example comes up it would have to be the subject of a determination having heard arguments on both sides.[20]Secondly, Mr Hutton makes the point that it is not uncommon for defendants to be changed or defendants to be added in a personal injury claim. That is undoubtedly correct but this however seems to me to be a question of drafting the CFA in the first place or alternatively by varying it in writing and in accordance with the statute and the Regulations at a later stage.[21]If the CFA as drafted is such that it can include a claim against any potential Defendant, then the present problem would not arise. Next it is said that in the case of Rentall v Wilcock & others (unreported) 30 th July 1997, whether as a judgment from Mr Justice Kay as he then was that decision is that the base costs are recoverable in circumstances where a Defendant was added later and a passage is relied upon on from that judgment where Kay J. said this:
"Those passages in my judgment are powerful supports for the approach adopted by Master Wright in this case. When the Plaintiffs first consulted their Solicitors all they really knew was that they had bought a business that was said to be profitable but which turned out to be anything but profitable. Exactly who was responsible on any legal basis upon which they could seek redress would not necessarily be clear to them.... The plaintiff's Solicitors as in many situations would have to explore all the possibilities and their investigations would not necessarily be focused for some time on the ultimate target, or all the ultimate targets, that is not infrequently the situation in litigation. The mere fact this particular Defendant had not yet been identified cannot, in my judgment, per se, prevent costs at that stage being costs that are recoverable in subsequent litigation."
Mr Hutton makes the point in his skeleton that the purpose there of the retainer was to obtain compensation for losses suffered.[22]In my judgment, in that case, it was construed there that the retainer was to sue whoever it was appropriate to sue. The Court in Rentall did not have to construe a written instrument; namely the CFA which is required by statute to be in writing and to be signed by both parties according the regulations made under the statute a written instrument which identified a particular named defendant in circumstances where statute or the regulations did not actually require the naming of a defendant.[23]The fact remains that on this CFA, the second defendants are not and were not covered by it and therefore, subject to the further points which I will to on to consider, it seems to me the success fee is not recoverable.[24]Mr Hutton dealt with what he said were the implications of the District Judge's decision. He said this:
"However what the District Judge appears to have ignored is the implications of such a decision in relation to future cases. If he was correct that the CFA did not cover the claim against the Housing Association but only against the City Council then as soon as it was clear from the documents produced by the City Council that it was the Housing Association which was responsible the Solicitors would have been entitled to reach the conclusion that the claim covered by the CFA, namely that against the Council, was likely to fail. Therefore clause 7(ii) of the CFA applied so that the Solicitors could terminate the CAF immediately."
He then cites clause 7(ii) which reads:
"We can end the agreement if we believe you are unlikely to win. If this happens you will only have to pay our disbursements and these will include barrister's fees if the barrister has no conditional fee agreement with us"
He then continues: "In other words, if the District Judge was correct, then the solicitors in a similar case would he perfectly entitled to end the agreement, bill the client immediately for all the disbursements to date (and take enforcement action if he did not pay them) and leave him high and dry in this litigation, all because it turned out during the litigation that the Council had sold on that particular housing stock. This is despite the fact that the client (in fact , a Litigation Friend) would no doubt say that it never mattered to him which organisation was liable, all he wanted was a solicitor to help him to obtain damages for his son. Whoever might end up being liable to pay them he would be stuck with no solicitor and a bill for disbursements (including medical expert fees and court fees at the very least). That is the inexorable logic of the District Judge's decision; it is a deeply unattractive vista.[22]In my judgment, when it became apparent that the second defendant needed to be added the claimant and the solicitor should have considered the point and if it was the intention of both of them to have a CFA as well as a retainer covering the second defendant then a fresh CFA agreement should have been entered into or the existing one properly varied in writing and signed. This should have been effected.[23]As to the points made by Mr Hutton as to what he says are the implications, namely that the solicitors on the present construction could have ended the agreement and billed the client for disbursements; that is something which could only be decided if and when it arose and having regard to both sides of the argument. I accept of course that there may be difficulties in certain theoretical circumstances, namely that the client did not then carry on to sue the second defendant and recover those disbursements against his second defendant. One possible answer, though it is not for me give all possible answers, one possible answer is that the claimant could claim that his Solicitors negligently advised him in entering the agreement and therefore he has a counterclaim to the value of their claim against him.[27]There might be similar theoretical difficulties in the claimant's alleged construction that the CFA did in fact cover the second defendant at its inception. If when the second defendant became identified the claimant had not wanted to sue the second defendant for some reason known to him, it follows that on the construction contended for by the appellants, that the claimant's solicitors would be able to say that they already had instructions and a retainer under the CFA agreement to sue the second defendants and if the claimant had then said he did not wish to do so they would have been able to pray in aid paragraph 7(a) of the CFA which reads as follows: "Pay us if you end this agreement You can end the agreement at any time; we then have the right to decide whether you must: Pay our basic charges and our disbursements including Barristers' fees when we ask for them or Pay our basic charges and our disbursements including Barristers' fees and success fees if you go on to win your claim for damages.[28]It is also said by Mr Hutton as to one of the unfortunate, so he would say, implications of the District Judge's decision, namely that the claimant can recover base costs against the second defendants; had the claimant lost against the second defendant he would have to pay his own solicitor's charges since there is no conditional fee agreement. Indeed the claimant's solicitors had they chosen, could have sued for their fees. This is not a dissimilar point from the preceding two and the outcome in such a case might have to be subject to argument and a possible cross-claim by the claimant.[29]As to these 3 possible arguments and implications (the first and third put by Mr Hutton and the middle one put by myself in response) none of these theoretical possibilities should or can in the present case in my judgment, detract from the proper purposive of construction of the words, namely that the CFA covers the Liverpool City Council alone.[30]Next, it is said that the claimant's litigation friend has clearly elected to treat the contract as covering the claim against the Housing Association and it is not for a stranger to the contract to intervene with an argument to the contrary (see King v Victoria Insurance Co [1896] AC 250 Privy Council pages 254-255)[31]In the present case, by statute and by the regulations the Claimant can only claim a success fee if there is a CFA in writing and signed by the parties. This must mean that it is a CFA which can properly be construed as covering the claim against the unsuccessful Defendant. This point, it seems to me, has no merit when one has regard to what was said by the Court of Appeal in the case of Hollins v Russell [2003] 1 WLR 2487 paragraph 92 where referring to an argument made by Mr Drabble for the Law Society the judgment of the court was as follows:
"His first submission was that 'unenforceable' only unenforceable in proceedings between solicitor and client. So it is not open to the paying parties to take the point. A great deal of the written and oral submissions to us concern this point and in particular the distinction between an unenforceable and an illegal contract. It faces the immediate difficulty that in Dymond v Lavelle [2002] 1 AC 384 the Defendant was able to resist paying the claimant's car hire charges on the grounds that the hire agreement was an unenforceable consumer credit agreement between the claimant and the hirer."
It is difficult to see any difference in principle between this situation and that. I adopt that reasoning.[32]Next, it is said that Master Gordon-Saker in a case called Brierley v Prescott 31 st March 2006 (unreported) came to a conclusion which should me in coming to a conclusion in favour of the Appellant. In that particular ease, the Claimant had entered into a CFA which provided that it covered "your claim against Hertz UK Ltd car hire for damages and personal injury suffered on 7 th January 2000". In paragraph 25 of the judgment, the Leaded Master said this:
"In my view the words, 'your claim against Hertz UK Ltd car hire for damages for personal injury suffered on 7 th January 2000' meant 'the claim for damages arising out of the accident and which was being handled by Hertz' and therefore must be taken to include the claim that was subsequently issued against Mr Prescott. The intention of the parties is obvious. The purpose of the 2002 agreement was to provide funding for the continuation of the claim which had been the subject of correspondence between Pinto Potts and Hertz for the preceding 3 years. There was only ever one 'claim'."
On the facts in that case, the Master felt that it was a permissible interpretation of the CFA contract to construe it as he did. The facts of this case are very substantially different and I am not assisted in this particular case by the Learned Master's reasoning.[33]Finally it was argued, if I may respectfully say so at the last gasp, that the CFA had been varied in writing; that was in response to an assertion made in the defendant's skeleton that there had been no variation in writing, as would be required. Just before he sat down Mr Hutton made the argument that the CFA was varied in writing and that this was not in the grounds of appeal or the skeleton argument, but it has briefly been the subject of argument, perhaps without the thorough investigation that might otherwise have been given to it, had it been thought through and flagged up earlier. It is based essentially on letters; three letters sent by the Claimant's Solicitors to Mr Law. The 7 th of January 2005:
"Dear Mr Law, , ' Pursuant to this accident, Liverpool Cily Council have sent us papers to state that they do not own the properties that were derelict and the cause of this accident. As a result further investigations will need to be carried out and I will make an application to the Court at the hearing on Monday morning"
. Then there are some consequential matters. There 10 th of February 2005 against Mr Law. "I have now received correspondence from the Solicitors of Berrybridge Housing and I will be making an application to the Court to include them in the proceedings." And further matters, and then the 4 th of March 05. "Dear Mr Law, The Solicitors of Berry bridge Housing have requested a period of time to investigate the matter and we have granted them this. They have until the 3 rd of May 2005 to respond oh liability or we will amend the proceedings to include them." As I mentioned before section 53(8)(a) of the 1990 Act as incorporated and amended in section 27 of the 1999 Act require that a CFA must be in writing, and also (3)(c) it must comply with such requirements (if any) as may be prescribed by the Lord Chancellor. And the Lord Chancellor has prescribed so far as it is relevant in this case, the CFA Regulations whereby Regulation 5. says the agreement must be signed by the client and the Legal Representative.[34]In my judgement there is no possibility that these letters could comply with the requirement to vary in writing, having regard to the statutory requirements in circumstances where such a variation, (unlike changes in charging rates) are not foreshadowed in any way in the original agreement. I am fortified in that by the, passage from Professor Treitel's book The Law of Contract (11 th Edition) pages 109, which says this; "In this sense a contract which has been evidenced in writing could not be varied orally" And he there gives an example:
"The position is the same where a contract ... which must be made is writing is varied in a way which does not satisfy the statutory formal requirements. For example where a contract for the sale of land which was made in a document signed by both parties, is varied in a material respect by an exchange of letters each of which is signed by only one party. In one case..." (And that is a reference to a case of McCausond v Duncan Warwick Ltd. [1997] 1 WLR 38) "... such a variation substituted an earlier completion date for that specified in the original contract, and it was held that the vendor could not insist on an earlier date."
In my judgment having regard to ail the points made by Mr Hutton, that this CFA can only on its true and proper construction, however purposively one applies that construction, be construed as to cover only the Liverpool City Council and not the second defendant.[35]I have considered the matter and in short that I decided that I will grant permission to the appeal on that issue; and that having granted permission to appeal will then dismiss the appeal for the reasons I have given. That leaves one small issue, namely the issue of costs. Because it is said even on the basis of the District Judge's decision which I have upheld; it is said that he wrongly made no order as to costs of the hearing before him. The second defendant is seeking to have all the claimant's cost disallowed and failed. They won only on the success fee, and it was wrong in that context to make no order for costs, thereby disallowing the claimant's costs of the argument in which they had recovered their base costs (albeit not a success fee). The appropriate order would have been costs in the case. The District Judge was wrong not to make such an order.[36]In my judgement this was an entirely proper order which was well within the District Judge's discretion. As Mr Wells skeleton says:
"Won one, lost one, and score draw."
Whether or not I would have made the same order is irrelevant. The fact is that it was well within the District Judge's wide ambit of discretion, and on this particular discrete point I refuse permission to appeal.

His Honour Judge Stewart: Right... shall we come back at 2 O'clock.

[38]Mr Hutton: You ... I wouldn't be oppose to an order for the costs of the appeal, and there's only one very small point on the schedule ... but if I leave it in the Court's hands.

His Honour Judge Stewart: It's the drawing up which will take ten minutes.

[40]Mr Hutton: Yes.[41]His Honour Judge Stewart: Which I am quite happy to do. (Inaudible). I need to (Inaudible).[42]Mr Hutton: No, no, no, no I don't want (Inaudible).[43]His Honour Judge Stewart: (Inaudible) 3.15. (Inaudible) that's a bonus (Inaudible) because my preparation has gone well beyond the norm, and I usually prepare quite thoroughly, but I have prepared very very thoroughly for this particular case.[44]Mr Hutton: I'm very grateful.[45]His Honour Judge Stewart: (Inaudible) The original estimate by your Solicitor was one hour, (Inaudible) instead of three (Inaudible) Mr Wells, anyway carry on.[46]Mr Hutton: I am very grateful (Inaudible). (Inaudible) dotting "I's" and crossing "t's". We accept the liability to pay costs, there is only one issue that I am asked to raise.

His Honour Judge Stewart: I don't think I've (Inaudible).

[4]S Mr Hutton: (Inaudible). I'm afraid it's in relation to our learned friends fees, but there you go. It's on the second page at the top, there's no issue in relation to the fees for the hearing it's just a query as the to fees for the advice documents which presumably the skeleton my learned friend (Inaudible) which I wasn't (Inaudible) and so that is the query. (Inaudible) justified. (Inaudible). I accept (Inaudible) taken advice on what we should do about it. (Inaudible) on whether the (Inaudible) at the appropriate time and then put them together (Inaudible). As your Honour will see the (Inaudible) from that (Inaudible).[49]His Honour Judge Stewart: I understand that Mr Hutton's evidence actually made it more clear that which is documented in writing must be varied in writing, and although that did not actually take up terribly much time, putting it all together, responding to it in some respect (Inaudible).[50]Mr Hutton: The (Inaudible) element is when you've done such a detailed skeleton that's perhaps when the fee becomes ...[51]His Honour Judge Stewart: Yes, Yeah okay, without saying anything I'm willing to allow the sum of two hundred pounds (Inaudible). Okay I'll allow six hundred instead of 702. (Inaudible). Right so how much (Inaudible) comes up.[52]Mr Hutton: (Inaudible) should be three thousand and eight pounds, forty eight pence.[53]His Honour Judge Stewart: That's on the grounds of (Inaudible). ... (Inaudible) seems to be comprehensive.[54]Mr Hutton: (Inaudible). Your Honour may I say that when Your Honour said that I (Inaudible) I haven't recorded it. I'm sorry but I have recorded it.

His Honour Judge Stewart: It's usually the other way around.

[56]Mr Hutton: I must apologise (Inaudible) the case actually comes back to mind.

His Honour Judge Stewart: (Inaudible) loss in front of me.

[58]Mr Hutton: I think I lost the other one in front of me.

His Honour Judge Stewart: I should be careful of that then.

[60]Mr Hutton: (Inaudible) I've been upheld once on one of his cases I think, and I've still got one pending.

His Honour Judge Stewart: Yeah,

[62]Mr Hutton: (Inaudible) Gar ... Garrett.

His Honour Judge Stewart: Oh Garrett.

[64]Mr Hutton: Yeah that's pending.

His Honour Judge Stewart: That's coming up in June isn't it... 19 th of June.

[66]Mr Hutton: Right well...

His Honour Judge Stewart: There'sa lot of excitment in Court circles about that. (Inaudible).

[68]Mr Hutton: What on the basis that I've caused the excitement?

His Honour Judge Stewart: It's a hot topic and a lot of cases are waiting for the result.

[70]Mr Hutton: (Inaudible) I think the ordinary person in the street (Inaudible) hot topic and (Inaudible).

His Honour Judge Stewart: I did qualify it by (Inaudible).

[72]Mr Hutton: (Inaudible) there's still lots of cases (Inaudible).[73]His Honour Judge Stewart: Yes, there were an awful lot of cases before the 1 st of November; before the 1 st of November 2005.[74]Mr Hutton: Is it the only case or are there others which have gone on the same level (Inaudible).[75]His Honour Judge Stewart: I think it's being heard with another case which isn't on exactly the same point. I think it's being heard with a case called Myatt. Which is a decision of Master Wright's in which he disallowed all the costs, it's a sort of Satilini point.[76]Mr Hutton: Oh I thought that one might well (Inaudible) and .... I couldn't find myself able to follow it exactly.

His Honour Judge Stewart: Couldn't go ahead (Inaudible)

[78]Mr Hutton: (Inaudible) you never know. (Inaudible).

His Honour Judge Stewart: (Inaudible).

[80]Mr Hutton: (Inaudible), Yes it's and interesting point. (Inaudible) and it's not unavoidable.[81]His Honour Judge Stewart: No. There are two ways of avoiding it, it seems to me. One way is not to (Inaudible) at all... which may still have a risk as the defendant may still argue the point, and the other one is to say Liverpool City Council or such other defendant has notified you in writing, and then you would say (Inaudible) write a letter (Inaudible). END OF JUDGMENT We hereby certify that this Judgment was approved by His Honour Judge Stewart Q.C. on the 5th July 2006.

order

"(1) Held there was no valid CFA governing the works done by the claimant's solicitors in the claim against the second defendants, but there was a valid retainer; (2) The second defendant do pay the claimant's costs from 1 st September 2004; the costs if obtained of medical evidence and other costs incurred in the, (should be "generic" not "genetic") claim, but first defendant do pay claimant's costs wasted by their failure to notify the claimant's solicitors of the second defendant's involvement before 1 st September "04. All these costs to be subject to detailed assessment in default of agreement. (3) No order as to today's costs; (4) Leave to appeal refused. "

Cited in 1 later judgment