DAS UK Holdings Ltd v Asplin and Others

JurisdictionEngland & Wales
JudgeWhalan
Judgment Date22 August 2022
Neutral Citation[2022] EWHC 2214 (SCCO)
Docket NumberSCCO Reference: SC-2021-CRI-000052
CourtSenior Courts
DAS UK Holdings Limited
and
Asplin and Others

[2022] EWHC 2214 (SCCO)

Before:

Costs Judge Whalan

SCCO Reference: SC-2021-CRI-000052

IN THE HIGH COURT OF JUSTICE

SENIOR COURTS COSTS OFFICE

IN THE MATTER OF AN APPEAL AGAINST A REDETERMINATION

R v R (Das UK Holdings Ltd) v Paul Asplin and Others, Southwark Crown Court

T20167360 and T20167366

Thomas More Building

Royal Courts of Justice

London, WC2A 2LL

Appellant: DAS UK Holdings Limited

Mr. Rupert Cohen, Counsel, instructed by Edmonds Marshall McMahon, for the Appellant

Mr. Michael Rimer, Government Legal Department, for the Respondent

The appeal has been successful (in part) for the reasons set out below.

Judgment on Appeal under Section 17 of the Prosecution of Offences Act 1985Section 17 of the Prosecution of Offences Act 1985 and Regulation 10 of the Costs in Criminal Cases (General) Regulations 1986

Whalan

1

DAS UK Holdings Ltd (‘DAS’), the Appellant, appeals against the decisions of the Determining Officer at the Legal Aid Agency, the Respondent, in the assessment of a bill prepared pursuant to s.17 of the Prosecution of Offences Act 1985, following an order in a private prosecution that costs be paid out of central funds.

2

The Determining Officer's assessment and reasoning is recorded in two Written Reasons dated 9 th February 2021 (31 pages, plus appendices) and 26 th April 2022 (13 pages). The Appellant challenges some of the decisions set out in the first written reasons in an Appellant's Notice lodged on 19 th April 2021. The decisions set out in the second written reasons were separated from the original decision-making process, as the issues were stayed pending the Divisional Court's decision in Football Association Premier League and another v. Lord Chancellor [2021] 1 W.L.R. 3035. The second written reasons were published during the week before this appeal was listed on 3 rd and 4 th May 2022. At the appeal hearing, the Appellant sought permission to abridge time and vary the usual procedure, relying on a detailed Appellant's Note to stand effectively as an Appellant's Notice and Grounds of Appeal. No objection was made by the Respondent – indeed both parties considered it desirable to hear and decide all outstanding disputes without recourse to a disruptive adjournment – and so the court agreed exceptionally to include these recent issues in this Determination.

3

The disputed issues concern the assessment of various disbursements incurred by DAS, which can be set out as follows:

(i) Michael Brompton QC; fees claimed at £133,839.99, but allowed at £89,250.

(ii) Richard Whittam QC; claimed as a fixed fee in the sum of £335,000, but allowed (following re-determination) at £227,000.

(iii) Andrew Bird, senior junior counsel; fees claimed at £486,000, but allowed at £269,675.

(iv) Henry Hughes, junior counsel; claimed at £222,100, but allowed at £97,193.75 + various interlocutory hearing appearance fees, the quantum of which is unclear from the written reasons.

(v) Rebecca Chalkley, disclosure counsel; fees claimed at £259,164.90, but allowed at £80,000.

(vi) Noting Briefs; claimed at £9,200, but disallowed by the Determining Officer.

(vii) Emily Campbell, pensions counsel; written fee claimed at £2,500, but disallowed by the Determining Officer.

(viii) Price Waterhouse Cooper (‘PwC’); total fees claimed of £1,444,004.28, but allowed at £80,250.

(ix) Ernst & Young (‘EY’); total fees claimed of £1,970.631.60, but allowed at £122,702.30.

4

DAS Legal Expenses Insurance Ltd insures the cost of litigation brought by insured clients against third parties, including claims for damages for personal injuries. It is a subsidiary of DAS UK Holdings Limited which is owned ultimately by Munich Re, a major European insurance group with headquarters in Germany. DAS's relevant trading operations were conducted from Bristol.

5

Mr Paul Asplin (‘the first Defendant’), was employed by DAS throughout the indictment period of 2000 to 2014 as the Managing Director and then the CEO. Mr David Kearns (‘the second Defendant’), a solicitor, was employed until 31 st December 2004 as Head of Claims and General Manager. Ms Sally Jones (‘the third Defendant’) had worked for DAS as Head of Marketing, but she left in October 1999 when she began a relationship with Asplin. They married in 2001 but divorced in May 2005.

6

The three defendants were prosecuted successfully by DAS in 2018 (along with three other defendants who were acquitted) for conspiracy to defraud the company. The allegations, in broad terms, alleged that the defendants used their senior status in the company to exploit the way in which DAS did business in order to allow them to make secret profits, in breach of their fiduciary duties and without DAS being aware of their actions. The course of relevant conduct began in 2000 and was successfully concealed until 2014.

7

In 2000, Asplin and Kearns established a company called Medreport Limited (‘Medreport’) for the purpose of providing forensic medical reports relevant to personal injury claims. Medreport was structured so that the beneficial interests of the first and second defendants were deliberately concealed through the use of nominees and trusts. Asplin and Kearns, in other words, worked for DAS while in effect owning Medreport. They then arranged that DAS contracted with Medreport for the provision of medical reports, to the extent that over 90% of DAS's requirement was directed to Medreport. Over the years DAS placed an immense amount of business in the way of Medreport, to the very considerable profit of Medreport and its management and owners. Further, loans or funding arrangements were sometimes provided by DAS to Medreport, to the ultimate benefit of it and its covert owners. The third defendant was, for a time, involved in the management of Medreport, with a remuneration of £240,000 per annum. She later became a co-owner and director of Medreport, continuing to run the company after Asplin had transferred his interests to her.

8

In 2003, the first and second defendants also established a law firm called CW Law (‘CW’), which was then retained as one of the firms on a panel operated by DAS to act in litigation. Two very large sums were paid by DAS to CW. Again, Asplin and Kearns were alleged to have concealed their covert beneficial interests in CW and to have profited from the receipts.

9

Gradually suspicion arose as to the nature of the relationship between DAS, Medreport and CW and that some form of secret interest existed in favour of DAS's directors. An article appearing in a national newspaper in 2006 referred to the first defendant's use of the company to benefit his former wives, who by then included the third defendant. DAS commissioned enquiries and investigations, but the true position that Medreport was improperly profiting from DAS was successfully concealed by the defendants.

10

The second defendant sold his interest in Medreport in 2007 and the first defendant sold his in 2008. The third defendant continued to run Medreport. Contracts were renewed between DAS and Medreport after the ending of the interests of Asplin and Kearns.

11

In 2011 certain non-UK executives from within the DAS group insisted upon a tendering process being carried out for the allocation of expert reports. Medreport failed in this process, but the contract with Medreport was, nonetheless, renewed after Jones caused a letter to be written to Asplin threatening to reveal the truth to DAS, a letter described later in court as a “classic blackmail letter”.

12

In 2012 the board of DAS decided to terminate the relationship with Medreport. Medreport, led by the third defendant, sued DAS. Ignorant of the conspiracy, DAS settled the case in July 2013, paying a sum in excess of £800,000.

13

CW, meanwhile, was taken over by William Graham Law in 2007, the purchase being in fact financed to the tune of £3,000,000 by DAS. These proceeds were received by a Mr Culpan, who was ostensibly the sole proprietor of CW. In fact, one-third of the business was owned by the second defendant, while the first and third defendants shared another third. Banking documents disclosed subsequently that at least £950,000 (and perhaps more) of the sum paid in 2007 was transferred into an account of, inter alia, the second defendant.

14

In November 2014, DAS instructed Ernest & Young (‘EY’) to conduct an investigation into the relationship between DAS and Medreport. The investigation, in summary, comprised an accounting review, an investigation of the relevant supply contracts, interviews conducted with at least twenty individuals and consideration of voluminous, relevant documentation. EY produced an initial 143-page report in February 2015.

15

As a result of this investigation, DAS contacted the Financial Conduct Authority (‘FCA’), who referred the matter to the Serious Fraud Office (‘SFO’). In April 2015, the SFO declined to prosecute. DAS had also referred the matter to Avon & Somerset Police, but in March 2015 they also declined to prosecute.

16

DAS duly instructed Edmonds Marshall McMahon (‘EMM’), to pursue a private prosecution. EMM were instructed in April 2015 and in July 2015 a Norwich Pharmacal application was issued in the Queen's Bench Division, seeking disclosure of relevant documents held by, inter alia, the third defendant. The order was granted on 13 th July 2015 and thereafter several tranches of relevant documents were produced by the defendant and her company Medreport.

17

PwC was then instructed by DAS to oversee the process of disclosure, a necessary part of the prosecution. This included disclosure from the defendants, other third parties and, indeed, DAS itself. Initially almost 4.3 million documents were identified occupying a workspace that was roughly 432Gb in size. This was gradually reduced (the process is discussed in more detail in respect of PwC's fees below) until ultimately...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT