White v Revell Rev 1 [2006] EWHC 90054 (Costs)

Case No LS390341SCCO Ref: CW0508940IN THE HIGH COURT OF JUSTICEQUEENS BENCH DIVISIONVenue LEEDS DISTRICT REGISTRYSUPREME COURT COSTS OFFICEVenue Clifford’s Inn, Fetter LaneLondon, EC4A 1DQDate 8 th September 2006
Before
MASTER WRIGHT, COSTS JUDGE
Between
KEITH LEWIS JAMES WHITEClaimantMARK PETER REVELLDefendant
Mr Gordon Wignall (instructed by Irwin Mitchell) for ClaimantMr Simon P. Browne (instructed by Rollingsons) for DefendantHearing Hearing dates: 31 May and 1 June 2006
Judgment

Master Wright

[1]On 30 December 2000 the Claimant was riding his motorcycle along the A4074 road between Oxford and Reading towards the “Golden Ball” roundabout. The Defendant’s vehicle was parked in a lay-by when without warning the Defendant pulled out of the lay-by across the road into the path of the Claimant. The Claimant sustained serious and complex injuries.[2]Initially the Claimant was admitted to the Accident and Emergency Department of the John Radcliffe Hospital in Oxford. He was transferred to St James’ Hospital in Leeds on 1 March 2001. On 15 October 2001 he was transferred to the Spinal Injuries Unit at Pinderfieds Hospital in Wakefield for intensive rehabilitation.[3]After the accident the Claimant (who had legal expenses insurance with DAS Legal Expenses Insurance as part of his motorcycle insurance) instructed David Gist Solicitors of Bristol who were on the DAS panel. They represented him until November 2001 when he instructed Irwin Mitchell whose Personal Injury Department was in Leeds.[4]On 9 November 2001 (shortly before the change of solicitors) the Defendant’s insurers confirmed that there was no dispute on primary liability.[5]Irwin Mitchell at first acted for the Claimant on a conventional privately funded basis under a retainer recorded in their letter to him dated 26 November 2001. On 1 March 2002 the Claimant was discharged from hospital. On 1 May 2002 the Claimant’s condition had improved sufficiently to enable him to return to work.[6]On 8 January 2003 the Claimant entered into a conditional fee agreement (“CFA”) with Irwin Mitchell. Medical reports had already been obtained by Irwin Mitchell from Dr Kent (Consultant in Rehabilitation Medicine) and Mr Ellis (Chartered Physiotherapist) together with the Claimant’s medical records.[7]Irwin Mitchell proceeded to obtain a report from (among others) Mr Brian Gardner (Consultant Surgeon in Spinal Injuries) Dr Thompson (Clinical Psychologist) and Ms Tussler (Physiotherapist) and also there were joint reports obtained from Mr Limb (Consultant Orthopaedic and Trauma Surgeon) Dr Ford (Consultant Clinical Psychologist) Dr Harrison (Consultant Urologist) Mr Morris-Jones (Consultant Vascular Surgeon) and Dr Brinsden (Fertility Expert).[8]A voluntary interim payment had been made on 12 October 2001 in the sum of £1,927.00. A further interim payment in the sum of £27,138.40 was made in July 2003.[9]Proceedings were issued on 16 December 2003 (shortly before the expiry of the limitation period). The Particulars of Claim together with medical reports and a Provisional Schedule of Loss and Damage were served on 26 March 2004. In the meantime an after the event insurance policy was taken out by the Claimant at a premium of £1,742.35.[10]On 19 May 2004 the Defendant served a Defence in which liability was admitted and a Counter Schedule of Loss and Damage was served. Judgment was entered for damages to be assessed on 7 July 2004.[11]On 9 July 2004 the Defendant gave notice of a payment into Court of £750,000.00.[12]A Case Management Conference was held on 20 August 2004 at which the case was allocated to the Multi-Track and directions were given including a direction that the case be listed with a Trial window from 16 May to 27 May 2005.[13]There then followed a number of interlocatory hearings including a contested application for an interim payment to enable the Claimant to purchase a property. The Court ordered the Defendant to make a payment of £400,000.00 on 23 December 2004.[14]In May 2005 the total of the Defendant’s offer was £1.15 million. No settlement was reached until the second day of the Trial when the damages were finally agreed in the sum of £1.6 million. A Consent Order was made dated 23 May 2005 under which the Claimant’s costs were ordered to be assessed on the standard basis and paid by the Defendant.[15]The Claimant served a Notice of Commencement with the bill of costs on 18 July 2005 and the Defendant served Points of Dispute on 2 September 2005. By a further Consent Order dated 15 December 2005 the detailed assessment proceedings were transferred to the Supreme Court Costs Office.[16]The Claimant served Replies to the Points of Dispute which were dated 2 March 2006 and the detailed assessment was listed to be heard on 31 May and 1 June 2006.[17]The Claimant’s bill of costs is in three parts. Part one is headed “Work done from initial instruction to 17.11.01 by David Gist Solicitors, financed on a Private Client Basis and payable by the Defendant”. Part two is headed “Work done from 24.10.01 to 05.01.03 by Irwin Mitchell Solicitors, financed on a Private Client Basis and payable by the Defendant”. Part three is headed “Costs from 06.01.03 onwards, financed under a Conditional Fee Agreement and payable by the Defendant”.[18]So far as is relevant, the Points of Dispute and Replies in relation to Part three of the bill were as follows: Page No. Issue Reply 8 Indemnity Principle Having regard to the Claimant’s, pre-accident employment position, income and social standing the Defendant is concerned the Claimant did not have any form of before the event insurance cover. This includes any household insurance policy or other policies or credit cards with such additional benefits. In support the Defendants will refer to the availability of BTE insurance set out in Sarwar v Alam 19/09/2001 [2001] EWCA Civ 1401. It is confirmed that the Claimant did in fact have a before the event insurance policy, which was used by David Gist Solicitors, who were appointed as panel Solicitors. It is noted that the bill of costs refers to David Gist’s work having been funded on a Private Client Basis. The Claimant apologises for this oversight. The Before the Event Insurers confirmed that they would not identify the Claimant in respect of work undertaken by Irwin Mitchell Solicitors. In the circumstances, it was considered appropriate to enter into a Conditional Fee Agreement. In any event, the Claimant would respectfully draw attention to the fact that this was a high value claim, involving extensive injuries which required evidence from a variety of experts. The matter was settled on the second day of the Trial, which had been listed for 4 days. In the circumstances, it is contended that any before the event insurance would not have been sufficient in this matter. The Bill of Costs contains evidence of a Risk Assessment being undertaken but there is no indication at all that CFA funding was actually discussed with the Claimant or that he was advised. Accordingly, the Defendant is not satisfied sufficient or adequate enquiries were made of the Claimant prior to entering into the CFA so as to comply with the Conditional Fee Agreements Regulations 2000 at regulation 4(1) and 4(2). The Claimant may not have elected this method of funding and it is therefore important the Court is satisfied the Claimant was properly advised for the purposes of Consumer Credit Protection. The Defendant will further rely on Samonini v London General Transport Services Ltd dated 19/01/2005 and SCCO Ref: DOFL 0405618. The Claimant can confirm that the CFA was discussed with the Claimant on 6 January 2003. There is an attendance note to this effect, which will be produced if necessary, at Detailed Assessment for inspection by the Court. The Claimant is invited to disclose within 14 days a copy of the pre-CFA retainer and the CFA (in accordance with South Coast Shipping v HavantBC [2003] 3 ALL ER 779 – or elect to prove the same) and the file notes recording the exact nature of equerries made of him and advice given as required by the said Regulations. If the Claimant is not prepared to disclose even a redacted copy of the CFA the Claimant the Court will be invited to put the Claimant to strict proof. A copy of the Conditional Fee Agreement was disclosed to the Defendant on 11.11.05. In terms of the pre-CFA retainer, Client care letters are subject to legal professional privilege and the Claimant declines disclosure, but has filed the documents with the Court in accordance with CPR Part 47.14 PD-013 Section 40.2 (i).[19]On 20 March 2006 the Defendant made further enquiries of the Claimant as to the identity of the BTE insurer which had indemnified him while he was represented by David Gist Solicitors and as to details of the policy and whether Irwin Mitchell had communicated with the insurers. On 23 March Irwin Mitchell responded saying: “...It is our view that we have already provided an open explanation of the position regarding Before the Event insurance in our Replies to Points of Dispute. We believe our response is satisfactory for the purpose of detailed assessment and in the circumstances are not prepared to disclose details of the policy [or] of communications with the insurer”.[20]On 31 March 2006 the Defendant served a document headed “Questions to the Claimant Pursuant to CPR Part 18 and Parts 44 – 48”. The Document was settled by Counsel.[21]The Claimant served (through Irwin Mitchell) a document headed “The Claimant’s Response to Part 18 Request for Further Information” on 20 April 2006. Attached to that document is a copy of the client care letter written by Irwin Mitchell to the Claimant dated 26 November 2001.[22]On 9 May 2006 the Defendant’s solicitors Rollingsons wrote to Irwin Mitchell requesting further information. On 24 May Elizabeth Jane Wright (the partner at Irwin Mitchell who had overall responsibility for the conduct of the Claimant’s case) made a Witness Statement which was served on the Defendant’s solicitors.[23]On 25 May Rollingsons wrote to Irwin Mitchell acknowledging receipt of Ms Wright’s Witness Statement. The letter said: “In relation to the statement and the second paragraph of your first letter Counsel is instructed to prepare Points of Dispute by 26 May 2006. The amended Points of Dispute will be delivered, with covering letter, to Master Wright’s secretary. The covering letter will explain to Master Wright the reasons for the amendments to the Points of Dispute which will, of course, be ventilated as of 31.05.06. We take the view that Elizabeth Wright’s statement bears out our contention that there has been non-compliance with Regulation 4 of the 2000 Regulations and that such a breach is material. Consequently we take the view that the statement, together with the questions over other documents, shows that the CFA with your client is unenforceable. In terms of the hearing next week we will require to cross-examine Elizabeth Wright. Kindly confirm she will be available for cross-examination. Incidentally, in relation to next weeks hearing the Brief has been delivered”.[24]On 26 May 2006 the Defendant’s solicitors served a document headed “Further and Better Particulars of Item 8 of the Points of Dispute: The Indemnity Principle”. The document states: “On or about 5 April 2006 the Defendant served the Claimant with a request for further particulars pursuant to CPR Part 18 and 47 PD Section 35.7. The Reply was received dated 20 April 2006:• It was not signed by the client or solicitor with a declaration as to its truth as required under the CPR.• The client did not answer any questions as requested. The replies confirmed that the client had the benefit of DAS Legal Insurance which covered the claim against the Defendant but that it was not used, instead the matter progressed under a CFA. It was further confirmed that previous solicitors (an experienced firm) to Irwin Mitchell had been funded under the legal expenses policy. In answer as to why the CFA was dated 8 January 2003 but the Regulation 4 advice is stated to have been provided on 6 January 2003 when there was no attendance note for that day, it was stated that the attendance on the 6 January 2003 had been omitted from the Bill of Costs in error and that Elizabeth Wright spoke to the Claimant on that day purportedly in compliance with Regulation 4. Nevertheless, by a Witness Statement dated 24 May 2006 Jane Wright asserts (paragraph 15 onwards) she states she saw the client on 3 January 2002 and 23 May [2002]. She states that any file note dated 6 January 2003 with regard to giving the client advice on the CFA was incorrect and must refer back to the conversation of 23 May 2002. It is not accepted that the move of the client to Irwin Mitchell was reasonable, it is as averred that the advice given as to the legal insurance expenses was in breach of Regulation 4(2)(c) and/or (d), and that there was a breach of Regulation 4 generally in that the advice given was in breach of the regulations and was given (if at all) some months prior to the signing of the CFA which was not explained to him. Such breaches were material in that they had a materially adverse effect upon the protection afforded to the client.”• It was not signed by the client or solicitor with a declaration as to its truth as required under the CPR.• The client did not answer any questions as requested.[25]On 31 May 2006 the Defendant was represented by Counsel, Mr Simon P Browne and the Claimant was represented by Counsel, Mr Gordon Wignall. Mr Browne gave me a bundle of documents comprising “outline submissions” in respect of: i) Enforceability of CFA dated 6 January 2003. ii) Hourly rates. iii) Success fee.[26]The bundle includes (at Tab 1) Section 27 of the Access to Justice Act 1999, (at Tab 2) The Conditional Fee Agreements Regulations 2000, (at Tab 3) the judgment of the Court of Appeal in Hollins v Russell [2003] 1 WLR 2487, (at Tab 4) Questions to the Claimant Pursuant to CPR Part 18 dated 31 March 2006, (at Tab 5) The Claimant’s Response to Part 18 Request for Further Information, (at Tab 6) a copy of the Defendant’s solicitors letter to Irwin Mitchell dated 9 May 2006, (at Tab 7) a copy of the Witness Statement of Elizabeth Jane Wright dated 24 May 2006, (at Tab 8) a copy of the website of David Gist solicitors, (at Tab 9) a copy of the judgment of the Court of Appeal in Sarwar v Alam [2002] 1 WLR 125, a copy of the judgment of HH Judge Stewart QC in the Liverpool County Court in the case of Culshaw v Goodliffe (24 November 2003), a copy of the judgment of Chief Master Hurst in the SCCO in the case of Samonini v London General Transport Services Ltd (19 January 2005), and a copy of the judgment of Master Wright in the SCCO in the case of Myatt v National Coal Board (12 August 2005).[27]Mr Wignall submitted that the Defendant should not be permitted to pursue the claim now made in the document dated 26 May 2006 (paragraph 24 above). He said that these issues had not been raised in the Points of Dispute (paragraph 18 above) and that the order of District Judge Spencer dated 15 December 2005 transferring the detailed assessment proceedings to the SCCO had said the hourly rates and success fee should be dealt with as preliminary issues.[28]Mr Wignall submitted that no genuine compliance issue had been raised and that the court should be satisfied by the certificate in the bill that the indemnity principle had not been breached.[29]Having heard Mr Browne’s submissions on behalf of the Defendant, however, I concluded that the Points of Dispute in relation to page 8 of the bill and the Replies together with the Defendant’s request for information under CPR Part 18 which had elicited an incorrect explanation of what had happened on 6 January 2003 amounted to a genuine compliance issue which the Defendant was entitled to explore by cross-examination. Ms Wright had attended the hearing and the parties agreed that the hearing should proceed so that she could be asked questions.[30]A “bundle relating to funding documents” had been prepared. Ms Wright took the oath and confirmed that the Witness Statement dated 24 May 2006 was her statement. She was questioned by both Mr Browne and Mr Wignall during the afternoon of 31 May and the morning of 1 June. I then adjourned the detailed assessment so that Counsel could serve written submissions and thereafter judgment was reserved to be handed down when it had been prepared.[31]In the introduction to his written submissions on behalf of the Defendant, Mr Browne states:
“1. Introduction 1. As forecast by the Points of Dispute the Defendant alleges two breaches of the Conditional Fee Agreement Regulations 2000 [Tab 2] as follows: (1) Failure to comply with Regulation 4 generally (2) Failure to comply with Regulation 4(2) (c) specifically 2. Further, it is alleged that such breaches, either on their own or in conjunction with any other such departure in this case, had a materially adverse effect either upon the protection afforded to the client or upon the proper administration of justice. 3. The Court is respectfully invited to find that those breaches occurred, that they were material breaches as defined, and therefore to find that the CFA is unenforceable between the Claimant and his solicitors. 2. Statutory Legal principles 4. Parties using a CFA prior to 1st November 2005 must adhere to the CFA Regulations for as section 58(1) of the 1990 Courts and Legal Services Act (as amended by s. 27 Access to Justice Act) [Tab 1] which states: “58. – (1) A conditional fee agreement which satisfies all of the conditions applicable to it by virtue of this section shall not be unenforceable by reason only of its being a conditional fee agreement; but (subject to subsection (5)) any other conditional fee agreement shall be unenforceable...... (3) The following conditions are applicable to every conditional fee agreement - .....(c) it must comply with such requirements (if any) as may be prescribed by the Lord Chancellor.” 5. The relevant regulations were the Conditional Fee Agreements Regulations 2000 and in particular regulation 4 wherein the legal representative, prior to entering into the agreement, must inform the client about the various matters generally, and in particular, consider the availability of any existing (i.e. before the event) contracts of insurance for liability for costs. The regulation in full states: Information to be given before conditional fee agreements made 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 – (a) the circumstances in which the client may be liable to pay the costs of the legal representative in accordance with the agreement, (b) the circumstances in which the client may seek assessment of the fees and expenses of the legal representative and the procedure for doing so, (c) whether the legal representative considers that the client’s risk of incurring liability for costs in respect of the proceedings to which agreement relates is insured against under an existing contract of insurance, (d) whether other methods of financing those costs are available, and, if so, how they apply to the client and the proceedings in question, (e) whether the legal representative considers that any particular method or methods of financing any or all of those costs is appropriate and, if he considers that a contract of insurance is appropriate or recommends a particular such contract – (i) his reasons for doing so, and (ii) whether he has an interest in doing so. (3) Before a conditional fee agreement is made the legal representative must explain its effect to the client. (4) In the cases of an agreement where – (a) the legal representative is a body to which section 30 of the Access to Justice Act 1999[2] (recovery where a body undertakes to meet costs liabilities) applies, and (b) there are no circumstances in which the client may be liable to pay any costs in respect of the proceedings, paragraph (1) does not apply. (5) Information required to be given under paragraph (1) about the matters in paragraph (2)(a) to (d) must be given orally (whether or not it is also given in writing), but information required to be so given about the matters in paragraph (2)(e) and the explanation required by paragraph (3) must be given both orally and in writing. (6) This regulation does not apply in the case of an agreement between a legal representative and an additional legal representative. 6. Non compliance with the Regulations does not automatically render the CFA unenforceable. It must be a material breach. Brooke LJ, in the lead case of Hollins v Russell (2003) 1 WLR 2487 [Tab 3], indicated how an agreement in breach of the Regulations would be found to be unenforceable. He stated at paragraph 107: “107 The key question, therefore is whether the conditions applicable to the CFA by virtue of section 58 of the 1990 Act have been sufficiently complied with in the light of their purposes. Costs judges should accordingly ask themselves the following question: “Has the particular departure from a regulation pursuant to section 58(3)(c) of the 1990 Act or a requirement in section 58, either on its own or in conjunction with any other such departure in this case, had a materially adverse effect either upon the protection afforded to the client or upon the proper administration of justice?”
If the answer is “yes” the conditions have not been satisfied. If the answer is “no” then the departure is immaterial and (assuming that there is no other reason to conclude otherwise) the conditions have been satisfied.” 3. The Bill of Costs 6. Part 1 of the Bill of Costs was under a private retainer instructing David Gist Solicitors until 14/11/01 with an indemnity from BTE insurers. The total costs for that part of the Bill were £2,340.25 inclusive of VAT. 7. Part 2 of the Bill of costs was on a private retainer instructing Irwin Mitchell between 24/10/01 and 5/1/03 with no indemnity for those costs. For this part they total £14,249.30 inclusive of VAT. 8. Part 3 of the Bill of Costs is covered by the CFA dated 8th January 2003 and covers the period 6/1/03 onwards. This part totals £448,727.90 inclusive of VAT, success fee, and insurance premium (the later two items being amounting to £199,425).” “58. – (1) A conditional fee agreement which satisfies all of the conditions applicable to it by virtue of this section shall not be unenforceable by reason only of its being a conditional fee agreement; but (subject to subsection (5)) any other conditional fee agreement shall be unenforceable...... (3) The following conditions are applicable to every conditional fee agreement - .....(c) it must comply with such requirements (if any) as may be prescribed by the Lord Chancellor.” Information to be given before conditional fee agreements made (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. (a) the circumstances in which the client may be liable to pay the costs of the legal representative in accordance with the agreement, (b) the circumstances in which the client may seek assessment of the fees and expenses of the legal representative and the procedure for doing so, (c) whether the legal representative considers that the client’s risk of incurring liability for costs in respect of the proceedings to which agreement relates is insured against under an existing contract of insurance, (d) whether other methods of financing those costs are available, and, if so, how they apply to the client and the proceedings in question, (e) whether the legal representative considers that any particular method or methods of financing any or all of those costs is appropriate and, if he considers that a contract of insurance is appropriate or recommends a particular such contract – (i) his reasons for doing so, and (ii) whether he has an interest in doing so. (a) the legal representative is a body to which section 30 of the Access to Justice Act 1999[2] (recovery where a body undertakes to meet costs liabilities) applies, and (b) there are no circumstances in which the client may be liable to pay any costs in respect of the proceedings, paragraph (1) does not apply. “107 The key question, therefore is whether the conditions applicable to the CFA by virtue of section 58 of the 1990 Act have been sufficiently complied with in the light of their purposes. Costs judges should accordingly ask themselves the following question:
“Has the particular departure from a regulation pursuant to section 58(3)(c) of the 1990 Act or a requirement in section 58, either on its own or in conjunction with any other such departure in this case, had a materially adverse effect either upon the protection afforded to the client or upon the proper administration of justice?”
If the answer is “yes” the conditions have not been satisfied. If the answer is “no” then the departure is immaterial and (assuming that there is no other reason to conclude otherwise) the conditions have been satisfied.”

Information to be given before conditional fee agreements made

[32]Mr Browne, after referring to the Points of Dispute and Replies and the further enquiries and responses and Part 18 Requests and Replies (see paragraph 15 to 22 above) referred to Ms Wright’s Statement dated 24 May 2006. He submitted that the contents of the Statement totally contradicted the information previously provided. In her Witness Statement Ms Wright said that she did not, as previously stated, give Regulation 4 advice on 6/1/03 but spoke to the Claimant about costs on three particular occasions – on 24 October 2001 (paragraphs 9 – 10 of her statement) on 3 January 2002 (paragraph 14 of her statement) and on 23 May 2002 (paragraphs 16 and 17 of her statement).[33]Mr Browne said that Ms Wright had criticised the conduct of the Claimant’s case by David Gist solicitors (paragraph 13); referred to enquiries made of other potential legal expenses insurance policies (paragraph 9); referred to the existence of the DAS policy and the letters written by Irwin Mitchell to DAS (paragraphs 14 – 15, 28 and Appendices 1 and 2) although no reply from DAS was provided until near the end of her cross-examination; and explained that the file note dated 6 January 2003 had been incorrectly placed on the file. (Paragraphs 19 -21).[34]As mentioned in paragraph 30 above a “bundle relating to funding documents” had been prepared and was referred to during Ms Wright’s oral evidence. Page numbers referred to below are the page numbers in that bundle. Where Tab numbers are referred to, they are Tabs in the bundle of documents comprising the Defendant’s “outline submissions” mentioned in paragraph 25 above. “TB” refers to Trial Bundle so that “TB 3/922/5” is a reference to paragraph 5 on page 922 in Trial Bundle 3.[35]Mr Browne said that in order to justify her contention that Regulation 4 had been complied with, Ms Wright had asserted• That she made a positive decision not to give Regulation 4 advice to the Claimant between 6/1/03 and 8/1/03• Consequently no Regulation 4 advice was given to the Claimant by his solicitors between the issue to him of the draft CFA on 6/1/03 and it being signed by the Claimant on 8/1/03• The Claimant had received satisfactory Regulation 4 advice due to the cumulative effect of meetings when seen by the solicitors on 24/10/01, 3/1/02 and 23/5/02.[36]Mr Browne said that these assertions had to be seen alongside a catalogue of errors on the part of Irwin Mitchell: (a) The letter sent to the Claimant on 6/1/03 [page 19] stated that they would “Telephone you during the next few days to go through this documentation with you and answer any questions that you may have before you sign the CFA”. Ms Wright had been asked why that had not been done. She replied (according my note):
“This is a standard letter. On 6 January I met Ms Priestly my trainee. She had generated a CFA under my instruction and we went through it before it was sent to the client. I recall that I was confident we had given the appropriate advice to the client. I was confident that if the client had any difficulty he would contact me. He was working on a project for Nuttalls at Sheffield and it was common for him to drop off documents at the office in Leeds. I am confident that if he had any difficulty over understanding the CFA he would have raised this with me at the time”
. Mr Browne said that there was an attendance note [page 18A] dated 6th January 2003 which stated:
“EJW proof reading all letters as SP had prepared”
. He remarked that inspite of having supposedly made a positive decision not to give any further Regulation 4 advice, the letter had nevertheless been sent unamended; (b) No mention was made in the attendance note of 6/1/03 [page 18A] of Ms Wright having made a positive decision not to give Regulation 4 advice. This was inspite of Ms Wright’s evidence at the hearing that (according to my note) “Training on costs issues is taken extremely seriously at Irwin Mitchell. Compulsory costs training is provided in house on a regular basis with written updates to all fee earners”. It was also contrary to the documentation which was automatically generated by the firm to ensure compliance; (c) The file note which was generated dated 6/1/03 [page 21] indicates that Regulation 4 advice was given on that day by Ms Wright. If what Ms Wright now stated was correct, it was a clear error to create such a file note and leave it on the file. It was curious, he submitted, that this should have happened despite the CFA documentation having been checked on that day [page 18A]; (d) The file note of the purported attendance on 6/1/03 [page 21] was relied upon in The Points of Reply to justify the contention that there had been compliance with Regulation 4 even though the attendance was not mentioned in the bill of costs. Apparently, he submitted, it was both an error to have omitted the attendance from the bill and also to have filed such Points of Reply; (e) The purported attendance of 6/1/03 [page 21] was relied upon in the Replies to Part 18 requests of 20/4/06 to justify the contention that there had been compliance with Regulation 4; it was asserted that it was an error not to have included the file note of 6/1/03 [page 21] in the bill of costs. If what the Court is now told is correct, such Part 18 replies were thoroughly misleading despite the time for filing such replies having been extended due to Ms Wright being away; (f) He submitted that it took Ms Wright another four weeks to correct the error in the Points of Reply and Part 18 replies, her Witness Statement having been served some two working days prior to the detailed assessment hearing. He submitted that apparently the previous details supplied had all been in error and suitable advice was given over a combination of three meetings.[37]Mr Browne submitted that this “catalogue of errors” would place the Court on notice as to the extreme care to be taken when analysing the evidence given by Ms Wright. He submitted that, in dealing with recollections of up to four and a half years after the event and her having borne a heavy intervening case load, her evidence should be approached by(1) placing reliance upon contemporaneous attendance notes specifically generated for the purpose of the action(2) treating with extreme caution any automatically generated document or standard letter from Irwin Mitchell and(3) treating with extreme caution purported recollections of detail up to four and a half years after the conversations now recalled unless supported by contemporaneous material (e.g. the attendance note of 24/10/01 [pages 1 – 3] where the view communicated to the client was that Irwin Mitchell would “probably” get approval for DAS which changed in evidence in 2006 to “possibly”).[38]Mr Browne submitted that Irwin Mitchell did not comply with Regulation 4 and had attempted to justify compliance in hindsight during the course of the detailed assessment by relying on three meetings with the Claimant, any general discussion as to costs being elevated to the status of “Regulation 4 advice”. No one particular conversation was relied on. The case was presented on a combination of meetings and the cumulative effect of the advice given.[39]At no time, he submitted, did Ms Wright state or record that she had given specific Regulation 4 advice. Her evidence was that she had “general discussions” about costs. Even if she had specifically given the purported Regulation 4 advice as set out in the file note of 6/1/03 [page 21] this would not have fulfilled the requirements of Regulation 4.[40]Regulation 4(2)(a) required the client to be informed of the circumstances in which he may be liable to pay the costs of the legal representative in accordance with the agreement. All the file note of 6/1/03 [page 21] states is:
“Paying our costs: Advising the client that if they do not have the benefit of legal expenses insurance, and are not a member of a Trade Union, the best option would be for them to take advantage of our Conditional Fee Agreement”
. This advice does not, he submitted, refer to the circumstances in which he may be liable to pay the costs of the legal representative in accordance with agreement: the paying of disbursements if a Part 36 offer is not beaten even though basic charges and success fee are not chargeable; this would not have occurred with an LEI policy. Further, the advice does not refer to the paying of a success fee if a client changes solicitors.[41]He said that, on Ms Wright’s own admission, at no time during her three discussions with the Claimant did she have before her a copy of the CFA on the Law Society’s Conditions which set out the precise circumstances where the client may be liable to pay the costs.[42]The last possible date upon which Ms Wright’s advice could have been given was, he submitted, 23/5/02. The CFA and the conditions were sent to the client for signing on 6/1/03. Even if one allows for a copy of the CFA being sent to him on 3/9/02 under cover of a letter [page 16] they were never gone through with him. The Regulation 4 advice should, he submitted, be given either contemporaneously or within a reasonable time so as to properly advise the client of his rights and obligations under the CFA. The advice being given without reference to the CFA and Conditions over seven months before the client was asked to sign the CFA was not reasonable or in accordance with the regulations “in the light of their purpose”. The solicitors had not, he submitted, explained the matters required under Regulation 4(2) or explained the effect of the CFA to the client as required by Regulation 4(3).[43]Mr Browne submitted that Regulation 4 advice could not have been given at the meeting on 24/10/01 because the Claimant was still a client of David Gist solicitors. He referred to the last two paragraphs of the note of the meeting [page 3] which, he submitted, showed that at the forefront of the discussion was DAS approval with a CFA as an alternative means of funding. He classified this as “general discussions”.[44]Prior to the meeting on 3/1/02 Irwin Mitchell had agreed to liaise with DAS. Once instructed they repeated their invitation to contact DAS in their letter of 26/11/01 [page 5]. However they had not done so by 3/1/02. No mention of costs is made in the note of the meeting on 3/1/02 [pages 8A – 8D]. The handwritten checklist of topics [page 8 1A] has all items ticked except the final entry of costs; Ms Wright had explained in evidence that a tick meant that a topic had been dealt with.[45]Mr Browne submitted that costs were not discussed at the meeting on 3/1/02. The actual case was discussed with a variety of heads of the claim being dealt with. There had not been time or inclination to deal with costs when the client was on a private retainer and DAS had not been contacted. He referred to paragraph 14 of Ms Wright’s Witness Statement where she says:
“I again discussed cost issues and went over the potential options discussed at our meeting on 24 October 2001. On every occasion when costs were raised with him I made it clear that if there was a dispute or issue about our costs then he could refer that issue to a process of assessment. It was agreed at the same time that I would contact DAS to confirm their position”
. He said that here Ms Wright attempted to go further than the contemporaneous documents reveal.[46]Mr Browne referred to the attendance note of the meeting on 23/5/02 [pages 12 – 15] with its reference to legal costs [page 15]. The first paragraph said:
“I explained to him that we have now received correspondence from DAS indicating that, at this stage, they are not prepared to indemnify him in relation to work undertaken by Irwin Mitchell on his behalf. I explained to him that DAS would be under an obligation to indemnify him once court proceedings had been issued, but that we were unlikely to be able to put pressure upon them to change their views at this stage”
. The second and third paragraphs said: “We then discussed in some detail a Conditional Fee Agreement. I said that Irwin Mitchell would be willing to enter into a Conditional Fee Agreement with him. We discussed disbursement costs and also potential risks for the Defendant’s costs and tactic of a payment into court. Keith indicated that he does [wish] to proceed by way of a Conditional Fee Agreement. It was agreed that I would forward to him all the relevant information”.[47]Mr Browne submitted that nevertheless it was clear that no Regulation 4 advice was being given not only because no relevant documentation was available, but because it was agreed that “all relevant information” would be forwarded to the Claimant. This was, he submitted a general discussion about which way to fund the case. It was not Regulation 4 advice.[48]Mr Browne referred to paragraph 16 of Ms Wright’s Witness Statement which says:
“I subsequently met with the Claimant at the Leeds office of Irwin Mitchell on 23rd May 2002 and as part of our discussion we discussed some details as the consequences of DAS’s decision”
. He submitted that is was incredible that Ms Wright should have answered Mr Wignall’s question about that in re-examination by saying:
“I think it should say: We discussed in some detail the consequences of DAS’s decision.”
He pointed out that Ms Wright had read the Witness Statement and signed it with a declaration as to its truth. We discussed in some detail the consequences of DAS’s decision.”[49]Mr Browne submitted that nowhere in the three meetings was Regulation 4 advice given either in the form prescribed by Irwin Mitchell’s file note of 6/1/03 [page 21] or at all. Instead a decision was purportedly made not to give the advice which was never recorded. In reality, he submitted, it might well be that Ms Wright ignored or forgot to give the requisite advice. Irwin Mitchell had, he said, been caught out by the errors which had occurred and sought to piece together an assertion as to compliance by reference to conversations months if not years before the CFA was signed. Perhaps, he submitted, in light of the paucity of information in the contemporaneous file notes, an effort had been made to enhance the case by the production of recent written and live evidence. That evidence was clearly inaccurate or, even if it was accurate, still did not establish compliance.[50]Mr Browne submitted that Irwin Mitchell had failed to comply with Regulation 4(2)(c) in respect of the DAS policy, the household policy referred to in paragraph 9 of Ms Wright’s Witness Statement and, having identified the career of the Claimant (a university graduate and quantity surveyor – see paragraph 29 of Ms Wright’s Witness Statement) failed to consider any policies which may have been available under any bank accounts, credit cards, travel insurance etc so as to advise the client properly or at all.[51]With regard to the DAS policy, Ms Wright had said in evidence (according to my note) that she did not believe she had seen it when she wrote to DAS on 11/2/02 and that she did not believe she had ever seen it. She therefore had no actual knowledge of the terms and conditions of the policy or the level of indemnity provided. She said in paragraph 28 of her Witness Statement that she knew the indemnity cover was likely to be restricted to either £25,000 or £50,000 since she had seen a considerable number of such policies whilst handling clinical negligence cases. Further at the time she accepted instructions to act for the Claimant she had no actual knowledge of the costs to date of David Gist solicitors. Ms Wright had (according to my note) said in evidence in reply to the question:
“It is correct that DAS rates are noticeably lower [than those of Irwin Mitchell]” “I believe they would have been lower under their standard terms but sometimes they alter their rates.”
Mr Browne commented in his submissions:
“This raises serious enquiry as to how Irwin Mitchell regarded such a policy as of use to her firm, rather than of use to the client. It is to be recalled that Ms Wright wished to charge £275 per hour for her services whereas the partner at David Gist in Bristol was on £145 at DAS rates; she confirmed she was aware that DAS rates were less than normal rates unless the case was exceptional.”
[52]Mr Browne said that when the reply from DAS to the letters from Irwin Mitchell of 11/2/02 and 4/4/02 was produced dated 19/4/02 [page 11A] it said:
“However, under the terms of the policy we reserve the right to take control of a claim at any point prior to the issue of proceedings and appoint one of our panel solicitors to deal with the claim. Therefore, in this case we regret that we will be unable to appoint you to deal with this claim.”
Ms Wright confirmed that she had accepted their interpretation as to the terms of the policy. According to my note Ms Wright said in evidence:
“I was aware that DAS, as stated in their letter, would not let Irwin Mitchell act under the policy. I accepted their position as stated in the letter, without asking to see the policy.”
[53]Mr Browne asked why she had accepted this without asking to see the policy when she had said in evidence that Irwin Mitchell had done work for DAS on occasions when they were not on the relevant panel. He asked whether she had, as suggested by DAS in their letter, discussed the matter with her client and reverted back to them. She replied (according to my note) “I did not”. She confirmed that she did not write to DAS again and did not ask for a copy of the policy.[54]Mr Browne asked Ms Wright whether she showed the DAS letter to the Claimant. According to my note she replied:
“I don’t know the answer but it is not my policy to show clients correspondence with legal expenses insurers. However Mr White was unusual in wanting to know. But I do not recall showing him the letter.”
[55]According to my note, Mr Browne asked Ms Wright in the course of the evidence whether she had advised the Claimant to go to Walker Morris in Leeds who were on the DAS panel and she replied:
“I did not. At the time I did not know they were on the DAS panel.”
My note goes on to record that Mr Browne asked whether she had enquired of DAS which solicitors in the locality were on the DAS panel and she replied: “No”.[56]Mr Browne submitted that having established that the Claimant’s liabilities for the costs were covered by an existing contract of indemnity, Irwin Mitchell had failed to comply with Regulation 4(2)(c) because they had not given proper advice. He submitted that they had failed to comply for the following reasons:(a) Ms Wright never called for the terms and conditions of the policy in order to consider them and therefore could not advise him properly;(b) Ms Wright never established the limit of indemnity under the policy and advise the Claimant accordingly (whatever the limit may have been, it was the actions of the solicitor at the time which matters);(c) Ms Wright never advised the Claimant to use panel solicitors other than David Gist whereby the indemnity could have been immediately invoked;(d) Ms Wright never raised the issue with DAS again even following the issue of proceedings;(e) Ms Wright never pressed DAS on their decision despite knowing the inconsistent way in which DAS authorised non panel solicitors to be indemnified by them.[57]Consequently he submitted the client could not have made a reasonable choice of solicitor when he moved to Irwin Mitchell because he was advised in an unreasonable manner in breach of the Solicitor’s Client Care Code and Regulation 4(2)(c).[58]With regard to the household policy referred to in paragraph 9 of Ms Wright’s Witness Statement, Ms Wright had said:
“He used his parents address in Beverley, East Yorkshire as his postal address. We discussed the possibility of his parents having a household policy that may provide additional LEI cover. Mr White confirmed that he was not a member of any union and that he did not have any other insurance cover available that could protect his cost position.”
[59]Mr Browne submitted that the household policy was never called for by Irwin Mitchell to be considered by Ms Wright. Instead she relied upon the Claimant to inform her that there was no such cover under that policy. He submitted that having been alerted to the policy it was incumbent on the solicitor to consider the policy to comply with Regulation 4(2)(c).[60]Mr Browne submitted also that when the Claimant visited the offices of Irwin Mitchell by appointment on 23/5/02 and the decision to enter into a CFA was made, the Claimant was not asked nor did he produce any bank account, credit card or travel documentation to the solicitor to consider the existence and availability of BTE insurance. He submitted that this failure on the part of the solicitor to consider the matter amounted to a breach of Regulation 4(2)(c) because the Claimant had no expertise in these matters.[61]Mr Browne referred to the decisions of Sarwar v Alam, Culshaw V Goodliffe and Myatt v NCB which are set out in Tab 9. The relevant passages were marked. He drew the Court’s particular attention to the following paragraphs: Sarwar v Alam• Paragraph 14 as to the Solicitors Client Care Code• Paragraphs 45 – 51 as to the duties upon a solicitor under the regulations and in particular paragraphs 45 and 46• Paragraphs 49 and 50, particularly where the court is referring in paragraph 50 to acting in a manner which is reasonable given the potential costs and issues involved. He submitted that even an exhausted indemnity at £50,000 level saves another £50,000 of success fee being charged to the client whether on profit costs or disbursements. Culshaw v Goodliffe• Paragraph 4 in analysis of the word consider in regulation 4(2)(c)• Paragraph 9 similarly where the ruling of HHJ George was approved by HHJ Stewart QC as to the word consider and that most clients (if not lawyers or insurers) should be asked to produce their documents• Paragraph 10 where the views of the Court of Appeal in Sarwar v Alam as to being reasonably practical and fact sensitive are imported.• Paragraphs 15 and 16 as to the enquiries which should be made against the balance of reasonableness Myatt v NCB• Paragraphs 71 to 76 where he submitted the circumstances of the present case are infinitely worse than the circumstances in Myatt because there were two areas of default i.e. DAS and the household policy.[62]Mr Browne referred to the question of the materiality of the breaches (see paragraph 31 above at paragraph 6 of the introduction to Mr Browne’s written submissions). He referred to paragraphs 24 – 32 in Culshaw v Goodliffe and to paragraphs 65 and 66 in Samonini v London General Transport Services Ltd (to be found at Tab 9).[63]He submitted that the Claimant had been put to greater potential expense due to the breaches, as the following references to the bill of costs illustrate (all figures are ex VAT)• At item 121 there is a claim for solicitors’ success fee at 100% in the sum of £140,002.50• At item 122 there is a claim for Counsel’s success fee at 100% in the sum of £20,750.00• At item 125 there is a claim for solicitors’ success fee at 100% in the sum of £7,487.50.• At item 23 there is a claim for a paid insurance premium of £1,742.35.[64]Mr Browne submitted that even if the BTE policy was limited to £50,000, by the time of entering into the CFA Parts 1 and 2 of the bill totalled only £16,589.55 and there was an admission of liability. On taking the case over from David Gist solicitors the costs (Part 1 of the bill) were only £2,340. Had the work been continued under the DAS policy a further £47,660 of costs could have been incurred within the £50,000 limit of indemnity. The saving would have been the success fee on that figure at 100%. Nevertheless, he submitted, the saving could have been even more if the interim payments could be treated as going towards discharging costs liabilities.[65]Mr Browne submitted that under the CFA (but not under an LEI policy) if a Part 36 payment had been made and not been beaten the Claimant would have been liable to pay the disbursements even though basic charges and success fees would not have been recoverable. Further the Claimant could not terminate the CFA (e.g. to instruct a solicitor on the DAS panel) without still being liable for the success fee.[66]He submitted that the Claimant may still have been liable for the basic fees, success fees and disbursements under the CFA if the Court determined that they should be paid even though not recoverable from the Defendant. In these circumstances he said that the assertion by Ms Wright in evidence that a CFA with Irwin Mitchell was more beneficial to the client than BTE insurance was extraordinary. According to my note Ms Wright said (when being re-examined by Mr Wignall):
“We give clients a guarantee that they will keep 100% of their damages. You cannot guarantee that under an LEI policy because there is a third party involved in cost recovery. The insurer has an interest in cost recovery and any short fall would be recovered from the damages”
. Mr Browne submitted that Irwin Mitchell may have policies as to chasing clients for monies or not but the terms of the CFA are what matters.[67]Access to justice, Mr Browne submitted, does not entitle the solicitors to pursue claims in CFA’s (in this case claiming 100% uplift) without first considering all funding as to BTE insurance, advising upon that insurance, and thereafter advising upon the consequences of the CFA with its associated success fees, disbursements and insurance premiums. He submitted that as a result the administration of justice had been materially affected.[68]Mr Browne’s written submissions on behalf of the Defendant were delivered to the Court under cover of a letter dated 5th June 2006. Mr Wignall’s written submissions on behalf of the Claimant are dated 19th June 2006 (a short extension of time having been agreed). Although the order of 1st June 2006 makes no provision for a Reply, Mr Browne served a Reply on behalf of the Defendant dated 22nd June 2006. Mr Wignall wrote a letter to Mr Browne dated 27th June 2006 a copy of which was sent to the Court. I do not think it is necessary for me to comment on the Reply or Mr Wignall’s letter except to say that there was evidently a disagreement between Counsel as to the extent to which submissions which had been made by Mr Browne should have been put to Ms Wright when she was giving evidence.[69]On 18th July 2006 the Court of Appeal handed down judgment in the case of Deborah Garrett v Halton Borough Council: David Myatt & Others v TheNational Coal Board [2006] EWCA Civ 1017 (“Garrett & Myatt”). Irwin Mitchell asked for permission to file and serve further submissions in respect of that judgment and permission for that was given to both parties.[70]The further submissions for both parties were received on 11th August 2006. Mr Browne’s further submissions referred to the judgment in Garrett & Myatt. He said:
“8 In summary the Court of appeal held that: (a) The question of whether or not the client has suffered actual prejudice as a result of a failure to comply with a condition had not been determined in Hollins (paragraph 22 of the Judgment); (b) The starting point was the clear and uncompromising language of s 58(1) and s 58(3) of the 1990 Courts and Legal Services Act (paragraph 27 of the Judgment); (c) If one or more of the applicable conditions was not satisfied the CFA would be unenforceable (paragraph 27 of the Judgment); (d) Parliament had to be taken to have deliberately decided not to distinguish between cases of non compliance that were innocent and those that were negligent or committed in bad faith or between those that had caused prejudice or those that did not (paragraph 30 of the Judgment); (e) The prescribed conditions were for the protection of the solicitors’ clients which Parliament held so important as to provide that if a condition was not met the CFA would be unenforceable (paragraph 30 of the Judgment); (f) Accordingly, the question of whether the client suffered actual prejudice as a result of the failure to comply with a condition was not relevant to the question of whether the solicitors had breached a condition (paragraph 39 of the Judgement).”
[71]In the present case (and for the reasons he had already given) Mr Browne submitted that the Claimant’s solicitors did not fulfil the required conditions and the breaches were not trivial and immaterial. He said that it had to be conceded by the Claimant that Irwin Mitchell had not provided any, or any sufficient Regulation 4 advice during the meetings on 24/10/01, 3/1/02 and 23/05/02 and further, between 6/1/03 and 8/1/03 Irwin Mitchell made a positive decision not to deliver Regulation 4 advice. Such advice was a condition precedent to an enforceable CFA. Any argument that it did not adversely affect the Claimant was now otiose and the CFA was unenforceable.[72]Mr Browne referred to the guidance given in the Garrett & Myattjudgment as to the steps which should be taken by solicitors to discharge their obligations under Regulation 4(2)(c) and the availability of other insurance cover. The judgment held that the Regulation 4(2)(c) duty did not require solicitors slavishly to follow the detailed guidance given by the Court of Appeal in Sarwar(see paragraph 70 of the judgment). What was reasonably required depended on all the circumstances of the case. Mr Browne submitted that the factors mentioned in paragraphs 72 to 76 of the judgment were in the context of “high case load claims”. He submitted that nothing in the dicta of the Garrett & Myattjudgment altered the inevitable conclusion that the regulation had been breached and that the protection of the client and the administration of justice had both been adversely affected. Accordingly he submitted that the CFA was also unenforceable because of the breaches under Regulation 4(2)(c).[73]I hope that Mr Wignall will forgive me if I do not set out his written submissions in detail but I would like to say that I found them helpful. He comments that the thrust of the Defendant’s submissions on the evidence seek to persuade the Court to concentrate on the contemporaneous documents “as though JW’s oral evidence were either of no weight or discreditable”. On the other hand, he said that the Claimant relies substantially on the oral evidence of Ms Wright as well as the documentary material, “JW’s evidence explaining the contents of some of that material”.[74]Mr Browne’s general rejection of the submission that Regulation 4 had been complied with is to be found in paragraph 38 to 49 above. In the course of her oral evidence Ms Wright was asked about the three meetings which she had with the Claimant (24/10/01, 3/1/02 and 23/5/02). Mr Browne asked her what had been said which amounted to compliance with Regulation 4. He referred her to the document typed on 6th January 2003 (page 21) which had previously been thought to be a file note. Ms Wright said:
“The matters in the note of 6/1/03 were the matters which would have been discussed with the client at the three previous meetings”
. And a little later she said: “The file note was not a record of my discussion with the client on 6/1/03 but it was the questionnaire”.[75]When Mr Wignall asked Ms Wright questions in chief on 31st May, he asked if a regular format was adopted for such discussions, she replied:
“The format in all client meetings is to plan how to get expert evidence and how the factual evidence will come together – liability issues, medical evidence of the nature and extent of injury, factual and expert evidence about loss of earnings and care (usually the most contentious) and accommodation etc and the need to see how structured support can be provided.”
[76]Mr Wignall then asked:
“What about costs issues?”
Ms Wright replied: “Costs are discussed at all meetings with clients in this sort of claim. We are concerned that substantial costs will be incurred and that clients understand the risks”.[77]Mr Wignall asked what the main problem facing Claimants was in these cases of catastrophic injury. Ms Wright said that the main thing was to try to put an appropriate reserve: “The fear is that Defendants will quickly make offers or payments when we are not in a position to value the claim”.[78]Mr Wignall referred to the “Reasons for Level of Success Fee” in Schedule 1 to the CFA (page 28). Ms Wright said:
“This risk assessment was carried out by myself and Ian Bailey (a partner in the Leeds office)”
. Mr Wignall observed that the only issue which was put in the High Risk category was “Part 36 offer”.[79]In re-examination Mr Wignall referred to Schedule 1 of the CFA again. The CFA set the success fee at(a) 35% of the basic charges “assuming the case settles at any time prior to 3 months before the date fixed for the trial ...”; or(b) 100% if the case settles at any time thereafter. Ms Wright said: “The risk was that the Defendant would make a Part 36 offer or payment at a time when we did not have the medical evidence. We were afraid he would not be able to maintain his employment position. We might get an offer before we were able to value the offer and particularly in this case because he wanted to go back to work against medical advice. He was determined to go back to work. He was discharged in March and was back at work in six weeks”.[80]In my judgment the Court must have regard to all the circumstances when considering whether the Regulation 4 advice had been correctly given. When giving evidence in chief in reply to Mr Wignall’s question:
“What were you trying to do for Mr White?”
Ms Wright said: “When I first met him in October 2001 he was clearly very badly injured and had a traumatic time including treatment at various hospitals and various specialist teams. He was concerned about his ability to work and where he would live. He was embarking on extensive rehabilitation in a spinal unit. He did not know how long this would be or what the outcome would be. When representing clients with catastrophic injuries there are two elements. Firstly to ensure representation and secondly to ensure that the client gets appropriate medical treatment and rehabilitation. The two become interlinked because the rehabilitation exercise assists us in evaluating the compensation claim. So my main concerns were both legal representation and rehabilitation (which was likely to be expensive) so that we had to consider how to obtain appropriate funds to assist in the rehabilitation process”.[81]In paragraph 7 of her Witness Statement Ms Wright explains how, on admissions to the Regional Spinal Injuries Unit at Pindersfields Hospital, the Claimant had met Beryl Ducker and “expressed his concern about the conduct of his personal injury claim by his then solicitors David Gist”. On her advice the Claimant had contacted Ms Wright. In paragraph 8 Ms Wright refers to the meeting she had with the Claimant on 24th October 2001 where he told her that he had concerns about the conduct of his case. Ms Wright said: “He had limited information from his solicitor and he was not sure what was happening with the case. He also felt that the solicitor dealing with the case did not understand or appreciate the serious nature of his injuries. He also said that David Gist had been appointed as a result of a Legal Expenses policy attached to his road traffic insurance policy”.[82]In paragraphs 9 to 11 of her Witness Statement (although Irwin Mitchell were not at that time instructed to act for her), Ms Wright says that she discussed the question of costs and the disbursements which were likely to be incurred. She confirmed that Irwin Mitchell operated a policy by which they would fund disbursements as they arose during litigation. The fact that LSC funding would not be available, the option of him instructing Irwin Mitchell as a private paying client and whether there were any other potential legal expenses insurance policies in addition to the DAS policy were also discussed. Mr White confirmed that he was not a member of a union and did not have any other insurance cover available that could protect his costs position. The possibility that his parents might have a household policy that might provide him with Legal Expenses insurance was discussed. Ms Wright also gave him general information about the availability of a CFA to minimise the cost risks in the event that DAS would not indemnify him for the costs Irwin Mitchell would incur. Mr White had made arrangements for his then solicitor to visit the Spinal Unit and it was left that he would contact Ms Wright if he wished to change solicitors. On 19th November the Claimant telephoned Ms Wright to say that he wished Irwin Mitchell to take over the conduct of his case.[83]Mr Browne has submitted that there was a breach of Regulation 4 when Irwin Mitchell took over conduct of the case because they should have obtained a copy of the DAS policy to advise the Claimant as to its terms and, having regard to the DAS letter of 19th April 2002 (page 11A), they should have found out which firms of solicitors in the vicinity were on the DAS panel and advised Mr White to consult them.[84]Ms Wright was asked by Mr Browne how she had “considered” the DAS policy if she never had a copy of it. She replied: “I did consider the policy. DAS policies are familiar to me. I did not ask DAS for a copy of the policy”.[85]Mr Browne then asked whether she had asked DAS at any stage whether this was a regular policy. She replied: “I did not”. Mr Browne then said: “Without a copy of the policy you were not able to consider the policy”. Ms Wright replied: “I do not believe I needed to have the policy in order to advise Mr White as to its effect on the costs position”. Later, when further pressed by Mr Browne, she said: “I had knowledge of the terms and conditions of DAS policies and continued to work under DAS policies. I was confident I could advise him as to his costs risk”.[86]In paragraph 28 of her Witness Statement Ms Wright said: “Historically DAS has always been reluctant to indemnify Claimants when claims are being pursued with Claimants using non DAS panel solicitors. I knew the indemnity cover was likely to be restricted to either £25,000 or £50,000 since I have seen a considerable number of policies whilst handling clinical negligence cases. Due to the serious nature of Mr White’s injuries, I was very aware that the indemnity limit provided by the legal expenses insurance with DAS was unlikely to be sufficient, in any event, to deal with the potential costs to be incurred in pursuing the claim. When dealing with complex claims of this nature, the Defendant’s insurer’s tactics are often to make relatively early offers of settlement. I assessed that there was a risk that, at some point, the insurers would make a Part 36 offer or make a payment into court which would potentially put the Claimant at cost risk”.[87]The attendance note of the meeting on 23/5/02 states that Ms Wright explained to the Claimant that DAS would have been under an obligation to indemnify him once court proceedings had been issued (see paragraph 46 above). She explained in evidence that although DAS had not mentioned it in their letter of 19th April 2002, this obligation existed because of an EC directive. When re-examined by Mr Wignall, Ms Wright was asked whether she might have waited until proceedings were issued to see if DAS would then agree to indemnify Irwin Mitchell’s costs. She replied: “No and you would not wait for the issue of proceedings before finding out”.[88]In response to Mr Browne’s questions as to how she could have advised the Claimant properly without advising him to consult a local solicitor who was on the DAS panel she said: “My client was aware that he was responsible for who he instructed and that he could move his instructions. He fully understood the relationship between client and solicitors when he exercised his right to change from David Gist to Irwin Mitchell”.[89]Mr Wignall asked Ms Wright in the course of re-examination:
“You said you had between 12 and 50 files in 2002. Was there any reason to remember this case in particular?”
Ms Wright replied:
“We only represent people who sustained catastrophic and life changing injury. You tend to remember them all. Mr White’s injuries were particularly life changing in that prior to the accident he had been a “blokes’ bloke”
. He was very fit and focussed on his work. I had considerable sympathy for him and was impressed by his stoical approach to his injuries”.[90]Referring to the meeting on 3/1/02, Mr Wignall turned to paragraph 14 of Ms Wright’s Witness Statement where she had said:
“I again discussed costs issues and went over the potential options discussed at our meeting on 24 October 2001. On every occasion when costs issues were raised with him I made it clear that if there was any dispute or issue about our costs then he could refer that issue to a process of assessment. We agreed an action plan. Mr White was keen to know as much as possible about the planning of the case and how it would be conducted. Throughout the time we were dealing with his case he actively engaged in discussions about the case and the risks associated with the litigation process”
. Mr Wignall said:
“In cross examination you described these as general discussions. In paragraph 9 you also speak of general discussions”
. Ms Wright replied: “The discussion I had followed the same format as the file note of 6/1/03. These are the matters you discuss about costs and the discussions about how costs arise and the liability for them. I was discussing it with him in the context of a CFA being a potential option”.[91]When answering questions from Mr Browne about why the attendance note of the meeting of 3/1/02 did not make any reference to costs, Ms Wright said:
“The purpose of the file note is to record the discussion with the client but it is structured to deal with the heads of claim. For long attendances the files notes are kept separately from the file. The note contains information broadly in line with the heads of claim. Before meeting the client I would have done a brief note of the topics to discuss with the client”
. Ms Wright referred to her manuscript note prepared for the meeting on 3/1/02 (page 8 IA). The note showed eight topics. The first seven had been ticked but the last “Legal fees/costs” had not. Ms Wright said:
“In paragraph 14 of my Witness Statement I give details of what I remember of that meeting. My memory of what happened as recorded there is unchanged”
. And a little later she said: “My note shows that 1 – 7 are ticked and 8 is not ticked. “Ticking” means that I have dealt with it. Legal fees are always discussed last. The reason 8 is not ticked is that it is the last issue I discussed with the client. It is not in the note because that is an aide memoire and guide for the conduct of the case”.[92]In paragraphs 16 and 17 of her Witness Statement Ms Wright describes her meeting with the Claimant on 23/5/02. She said:
“As part of our discussion we discussed some details as the consequences of DAS’s decision”
. In answer to Mr Browne’s question about the phrase “some details” Ms Wright said:
“I think I discussed all details. At the meeting on 23/5/02 I would have discussed the issues discussed at the previous two meetings”
. For my part, I do not accept Mr Browne’s submission (paragraph 48 above) that this was incredible. Ms Wright was asserting something which was entirely consistent with her evidence that at all three meetings the Regulation 4 matters set out in the questionnaire or aide memoire of 6/1/03 were discussed.[93]In paragraph 17 Ms Wright said: “Despite his serious injuries and on-going disabilities, Keith White is an educated and articulate man who was keen to understand all aspects of his legal representation. From my handling of his case I know that he is university educated, and of all my clients he stands out in particular for the inquisitive and pertinent nature of the questions he asked about both the medical and legal issues – which includes issues relating to costs”.[94]Mr White’s Witness Statement dated 4th May 2005 (TB 3/932/85-94) gives his own account of his education and professional qualifications and the nature of his professional work.[95]Having heard the evidence given by Ms Wright on 31st May and 1st June I am entirely satisfied that she is an honest and trustworthy witness. It is greatly to her credit that she when she realised that staff at Irwin Mitchell had given an incorrect account of what had happened on 6/1/03, she prepared a Witness Statement setting out the true position. Whatever may have caused the “catalogue of errors” described by Mr Browne in his written submissions, I am satisfied that she has done her best both in her Witness Statement and in her oral evidence to put the position truthfully and correctly.[96]I am satisfied that Regulation 4 (2)(c) has been properly observed insofar as the DAS policy is concerned. The Claimant was aware of it when he first met Ms Wright on 24th October 2001. Ms Wright was well aware of the terms of DAS policies of this kind. She discussed the policy with the Claimant. Although she said (according to her note) that “we would probably be able to get approval from DAS for us to act on his behalf under their arrangements that they have with their own panel solicitors”, this turned out not to be the case and DAS confirmed this in their letter of 19th April 2002. Ms Wright had written to the Claimant on 26th November 2001 (immediately after he had instructed Irwin Mitchell) and she had said:
“As I indicated to you when we met, it may be possible for us to liaise with DAS with a view to us taking over care and conduct of your case on the same terms as previous solicitors”
. It was not correct of Mr Browne to say (paragraph 37 above) that the word “probably” had been changed in evidence in 2006 to “possibly”. The word “possibly” in relation to DAS agreeing to instruct Irwin Mitchell had been used in that letter.[97]In view of the urgent need to obtain expert medical evidence (David Gist solicitors provided statements from two treating doctors, Mr Handley and Mr Macdonald) (TB2/663 – 664 and TB2/665 -666) Ms Wright, reasonably in my view, ruled out the possibility (which had not been offered by DAS) of waiting until the issue of proceedings before asking them again to indemnify Irwin Mitchell’s costs. She proceeded to act for the Claimant initially on a privately paying basis and to obtain evidence from Dr Kent and Mr Ellis (paragraph 6 above). She knew that a CFA was the most appropriate form of funding in those circumstances and once the CFA was entered into further medical evidence was obtained (paragraphs 6 and 7 above).[98]I do not consider that, having regard to the nature of the Claimant and his education and professional experience, Irwin Mitchell were under a duty to advise him to consult another firm of solicitors who were on the DAS panel. Mr White had been recommended to consult Irwin Mitchell and he wanted to consult them knowing that they had expertise in dealing with cases such as his own.[99]Mr Browne submitted that Irwin Mitchell had also failed to satisfy Regulation 4(2)(c) because they had not called for the household policy referred to in paragraph 9 of Ms Wright’s Witness Statement and had failed to consider any policies which may have been available to the Claimant under any bank account, credit cards, travel insurance etc so as to advise him properly or at all. When the Claimant visited Irwin Mitchell’s offices on 23/5/02 by appointment he had not been asked for nor did he produce any such documentation.[100]Mr Browne had asked Ms Wright whether she had seen the household policy. She replied:
“No. I was subsequently advised by my client that there was no additional Legal Expense insurance”
. Mr Browne then said:
“So you were not able to consider it?”
Ms Wright replied: “I relied on my articulate client to be able to advise me as to whether there was Legal Expenses insurance attached to that policy”.[101]In paragraph 9 of her Witness Statement Ms Wright said (in relation to the meeting on 24/10/01): “I confirmed that LSC funding was not available to him and discussed the option of him instructing us as a private paying client. We also discussed whether there was any other potential legal expenses insurance policies attached to other insurance products in addition to the DAS motorcycle policy. Mr White told me that, at the time of the accident, he was living in digs as he was working away. He used his parents address in Beverley, East Yorkshire as his postal address. We discussed the possibility of his parents having a household policy that may provide additional LEI cover. Mr White confirmed that he was not a member of any union and that he did not have any other insurance cover available that could protect his cost position”.[102]Although Mr Browne expressed the view that the meeting on 24/10/01 has to be ignored for the purposes of a decision as to whether Regulation 4 has been satisfied, I do not agree. The Claimant had asked Ms Wright to visit him at the Spinal Unit because he was dissatisfied with his present solicitors and Ms Wright, according to her evidence, gave him advice in the form of the questionnaire which appeared as a “file note” on 6/1/03. It had been reasonable for her to do this because a decision was to be taken by the Claimant imminently following a visit his present solicitor was going to make. The Regulations do not, in my judgment, specify when the Regulation 4 advice must be given.[103]Mr White was an articulate and educated man whose professional work equipped him better than most people to evaluate advice that he was given and to decide whether or not he had any existing policies in addition to the DAS policy.[104]The guidance given by the Court of Appeal in Garrett & Myattas to the steps a solicitor should reasonably take to discharge his obligations under Regulation 4(2)(c) (see paragraphs 71 – 77 of the judgment) is neither rigid nor exhaustive. However given the nature of the client, the circumstances in which Irwin Mitchell were instructed and the nature of the claim it seems to me to have been reasonable for Irwin Mitchell to have dealt with the matter as they did. Ms Wright asked Mr White if he had any relevant policies. He is articulate and educated and a professional quantity surveyor. The nature of the claim was such that Legal Expenses insurance would have to have had very substantial cover for costs and disbursements. In my judgment Ms Wright was entitled to accept the statement of her client that he had no such insurance cover.[105]Further I accept Ms Wright’s evidence (see paragraphs 74 and 90 above) that the questions in the questionnaire [page 21] were repeated at each of the three meetings on 24/10/01, 3/1/02 and 23/5/02. Regulation 4(2)(c) and (d) were, in my judgment, satisfied because items 1 and 2 of the questionnaire were put to the client on all three occasions.[106]Regulations 4(2)(a) was satisfied when item 6 of the questionnaire was explained to the client. In my judgment, on the evidence I have heard from Ms Wright this was put to the client on all three occasions. Item 6 says: “6. (Accident Cases Only) – The Client keeps 100% of the compensation The most important benefit of using the Irwin Mitchell CFA “no cost to you service” is that if the client wins their claim they should keep 100% of their damages. They are virtually assured of this, even though we can’t give an absolute guarantee. The only circumstances in which the client would have to pay anything would be if the client did not cooperate with Irwin Mitchell and they were in breach of the Agreement – which rarely happens”.[107]I do not consider that it was necessary for Ms Wright to have had the CFA and the conditions in front of her before giving that advice. In my judgment it is a correct account of the practical effect of the CFA and satisfies the conditions in the Regulations.[108]Regulation 4(2)(b) is, in my judgment, satisfied because in paragraph 14 of her Witness Statement (which I accept) Ms Wright said:
“On every occasion when costs issues were raised with him I made it clear that if there was any dispute or issue about our costs then he could refer that issue to a process of assessment”
. Furthermore item 4 of the questionnaire sets out the circumstances in which the client may seek assessment of Irwin Mitchell’s fees and expenses and states that Irwin Mitchell would, on notification that the client wanted to have their costs assessed, let him “have the details of the procedure in writing”. I accept Ms Wright’s evidence that this information was given to the Claimant on each of the three occasions.[109]I consider that Regulation 4(2)(e) and 4(3) are satisfied both by the information given orally by reference to the questionnaire and by the letters which Irwin Mitchell wrote to the Claimant on 3/9/02 [pages 19 and 20] and on 6/1/03 [pages 19 and 20]. It will be recalled that Mr Browne asked Ms Wright about that letter in cross examination and the reply which she gave (paragraph 36 (a) above).[110]In my judgment neither the Act nor the Regulations require the solicitor to give the Regulation 4 advice at the time the CFA is signed. Regulation 4 says:
“Before a conditional fee agreement is made the legal representative must ...”
In this case the Regulation 4 advice had been given (as I accept on the evidence of Ms Wright) on three occasions and the Regulation 4(2)(e) and 4(3) advice had been given in writing for a second time by the letter of 6/1/03.[111]Mr Browne drew my attention to paragraph 107 of the judgment in Hollinswhere Brooke LJ said:
“The key question, therefore, is whether the conditions applicable to the CFA by virtue of section 58 of the 1990 Act have been sufficiently complied with in the light of their purposes...”
[112]In my judgment those conditions have been sufficiently complied with in this case.