Baranowski (Tomasz) By His Mother And Next Friend Anna Baranowski v Michael Rice
| Jurisdiction | Northern Ireland |
| Judge | Stephens J |
| Judgment Date | 24 November 2014 |
| Neutral Citation | [2014] NIQB 122 |
| Year | 2014 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 24 November 2014 |
1
Neutral Citation No. [2014] NIQB 122 Ref: STE9424
Judgment: approved by the Court for handing down Delivered: 24-11-14
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
QUEEN’S BENCH DIVISION
________
BETWEEN:
TOMASZ BARANOWSKI by his mother and next friend
ANNA BARANOWSKI
Plaintiff/Appellant:
-and-
MICHAEL RICE
Defendant/Respondent:
_______
STEPHENS J
Introduction
[1] This is a plaintiff’s appeal in relation to an order for costs made in the
County Court on 25 April 2013 in favour of the defendant upon the plaintiff’s claim
being dismissed. The appeal is confined to the issue of costs, there being no appeal
in relation to the dismissal of the plaintiff’s claim. The plaintiff’s claim arose out of a
road traffic collision and the defendant, Michael Rice, was insured by Axa Insurance
Limited (“Axa”). The policy of insurance included cover in respect of the costs of
legal representation but allowed Axa to conduct the defence of any civil proceedings
including appointing solicitors to act for the defendant. In exercising that power
under the policy Axa instructed Campbell Fitzpatrick, solicitors and they in turn
instructed Mr Spence of counsel to appear on behalf of the defendant.
[2] The plaintiff contends that an order for costs should not have been made as
the fee arrangement between Axa and Campbell Fitzpatrick contravened either the
indemnity rule in relation to costs or the rule based on public policy prohibiting
contingency fees including what are now termed conditional fees, or both.
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[3] I heard the appeal on Friday 24 October 2014 and on Friday 21 November
2014. All the facts in relation to the appeal were contained in the correspondence
which had taken place between the plaintiff’s solicitors and the defendant’s solicitors
after 25 April 2013. That correspondence was admitted in evidence without formal
proof. There was no need for any further evidence. I heard legal submissions from
counsel for the plaintiff and from counsel for the defendant.
[4] The day before the appeal was initially listed for hearing an application was
made to the court by the plaintiff’s solicitors for a stenographer to be permitted to be
in court so that an immediate transcript could be prepared. I was not persuaded that
there was any need for a stenographer to be present particularly given that the
proceedings are digitally recorded and any party could apply to the office of the
Lord Chief Justice for the release of a CD of the digital recording of the hearing.
Such an application to the office of the Lord Chief Justice would have to be
accompanied by undertakings and the payment of a fee. Normally the exact purpose
to which the CD was to be put would have to be explained. It may be that it was
anticipated by the plaintiff’s solicitors that oral evidence would be given but even if
that was so the amount of oral evidence and its anticipated lack of complexity could
not justify the presence of a stenographer in court. I refused the application which
was not renewed.
[5] Mr McCombe appeared on behalf of the plaintiff/appellant and
Mr Montague QC and Mr Spence appeared on behalf of the defendant/respondent.
I acknowledge the assistance that I received from counsels’ written and oral
submissions and in particular I acknowledge the professionally appropriate tone of
all the submissions.
Factual background
[6] On 25 April 2013 the plaintiff’s claim was dismissed and an order for costs
was made in favour of the defendant in accordance with Order 55 of the
County Court Rules (Northern Ireland) 1981. The order specified the amount of
costs as £3,555.20 plus VAT. As will become apparent the amount of scale costs was
in fact £3,475.20 inclusive of VAT and it is unclear as to why this larger sum was
stated in the order of the County Court. Regardless as to the outcome of the main
issues in this appeal the amount of costs recorded in the order was incorrect.
[7] Also on 25 April 2013 and subsequent to the hearing, Mr Spence submitted a
fee note to Campbell Fitzpatrick in accordance with the County Court scale in
respect of his fees.
[8] On 28 May 2013 Campbell Fitzpatrick sent a bill of costs to Axa which
included the fee charged by Mr Spence and also their own professional fee in
accordance with the County Court scale. The total fee amounted to £3,475.20
inclusive of VAT.
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2 cases
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LLD, by her mother and next friend v Secretary of State for the Home Department
...the Home Department [2019] EWCA Civ 673; [2019] 1 WLR 4647; [2019] 4 All ER 998; [2019] Imm AR 1152; [2019] INLR 619 Baranowski v Rice [2014] NIQB 122; [2016] NI 155 Barton and Booth v R [2020] EWCA Crim 575; [2020] 3 WLR 1333; [2020] 4 All ER 742 Eba v Advocate General for Scotland [2011] ......
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Cunningham (June) v Seanna Fegan and Irene Fegan
...the decision in the county court in this case I have given judgment in another case which raised similar issues, see Baranowski v Rice [2014] NIQB 122. In that other case I held that the fee arrangement between Campbell Fitzpatrick/BLM Solicitors and Axa was contrary to public policy. Subse......