Garrett v Halton Borough Council; Myatt v National Coal Board
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MOORE-BICK,LORD JUSTICE RIX,Lord Justice Dyson |
| Judgment Date | 16 March 2007 |
| Neutral Citation | [2006] EWCA Civ 1017,[2005] EWCA Civ 1621,[2005] EWCA Civ 1265,[2007] EWCA Civ 278 |
| Docket Number | A2/2005/0949,Case No: A2/2005/0949 & A2/2005/0949(A) & A2/2005/0949(C) —'Garrett'—A2/2005/2160 & A2/2005/2160(A),Case No: A2/2005/0949 (D),A2/2005/0949(B) |
| Court | Court of Appeal (Civil Division) |
| Date | 16 March 2007 |
[2005] EWCA Civ 1265
Lord Justice Rix
Lord Justice Moore-Bick
A2/2005/0949
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL COUNTY COURT
(HIS HONOUR JUDGE STEWART)
Royal Courts of Justice
Strand
London, WC2
MR G NICE QC (instructed by Websters) appeared on behalf of the Appellant
The Respondent was not represented and did not attend
This is an application for permission to appeal against the order of His Honour Judge Stewart dismissing an appeal against an order of Deputy District Judge Storey disallowing the entirety of the claimant solicitor's costs in Part II of the claimant's bill of costs.
In January 2003 the claimant Mrs Garrett caught her foot in a pothole and fell over, damaging her ankle quite seriously. She contacted the claimant's management company Ashley Ainsworth who referred her claim to Websters Solicitors to act on her behalf.
On 19 June 2003 she entered into a conditional fee agreement with Websters. The agreement pointed out that if she were unsuccessful she might have to pay her opponent's costs, and it was cited that they had verbally explained to her that a contract of insurance with a company called National Insurance Guarantee would be appropriate to cover that risk. Websters were on Ashley Ainsworth's panel of approved solicitors and they had informed the claimant orally of that fact. In the course of the conversation in which they did so they also told her that they had no interest in the insurance premium which was a matter between her and Ashley Ainsworth. Fortunately after a fairly short time the defendants admitted liability and the claim was settled.
On 16 June 2004 an order was made for a detailed assessment of Mrs Garrett's costs. Regulation 4 (2) (e) (ii) of the Conditional Fee Agreements Regulations 2000 requires a solicitor who is contemplating entering into a conditional fee agreement with a client to inform the client whether he considers any particular method of financing costs appropriate, and, if he recommends a particular contract of insurance for that purpose, to inform the client of the reasons for doing so and whether he has an interest in doing so. By Regulation 4 (5) that must be done both orally and in writing.
On 28 October 2004 the matter came before Deputy District Judge Storey for a detailed assessment of the claimant's costs. After hearing argument, he disallowed all those costs incurred after 19 June 2003 on the grounds that the solicitors had failed to comply with Regulation (4) (2) (e) (ii). He took the view that they had an interest in the insurance policy or in recommending the insurance policy because they had to recommend it if they wished to remain on Ashley Ainsworth's approved list of solicitors.
The claimant sought permission to appeal and identified four issues: first, whether Websters had an interest in the insurance policy; secondly, to say whether they had disclosed it; thirdly, whether it was relevant that the certificate of insurance was dated 10 June 2003 which was prior to the date of the conditional fee agreement; and, fourthly, whether any failure to comply with Regulation 4 had a sufficiently adverse effect on the protection afforded to the client for the administration of justice so as to render the agreement unenforceable.
When the matter came before His Honour Judge Stewart he refused permission to appeal in respect of the first three grounds, but he granted it in relation to the fourth. He then heard and dismissed the appeal on that ground. Having considered the decision of this court in Hollins v Russell [2003] 1 WLR 2487, he held that the question whether the requirements of the legislation were satisfied should be determined by reference to the fact that this was at the time the agreement was entered into.
This is an application for permission to appeal against Judge Stewart's order. It follows that it is a second appeal and that the court can only give permission to appeal if it is satisfied that the case raises an important point of principle or practice or that there is some other compelling reason for doing so, as well as being satisfied that there is a reasonable prospect of success.
The situation out of which this application arises is likely, in my view, to be quite common. In the present case it is interesting to note that the solicitor in question dealing with Mrs Garrett's case did not think that his firm had an interest in the policy. It may be a view which may be shared by others. There is reason to think that the issue may have wider implications than was originally thought. It seems to me at least that it is an issue which deserves consideration in order to clarify the position.
In Hollins v Russell this court gave detailed consideration to the application of the statutory regime governing conditional fee agreements and in doing so (paragraph 2 which the judge himself considered in some detail) expressed the opinion that only material failure to comply with those requirements would render the agreement unenforceable. Certain passages in the judgment in that case suggest that the question is, perhaps, to be determined in the light of circumstances as they exist at the time when the question arises for decision, which will often be at the stage of the detailed assessment for costs, rather than simply by reference to the circumstances existing at the time the agreement was entered into.
In my view, this is a question of general importance which has yet to be authoritatively determined, and it is one on which there are reasonable prospects of the appeal succeeding on the facts of the case.
For my part therefore, I would give permission to appeal.
I agree.
Order: Application granted. Appeal be heard by three Lords Justices. A time estimate one day and revisions of same be notified to List Office. Any application to admit further evidence and supplementary skeleton argument referable be supplied within two weeks. Time for interventions within one month. Respondent's skeleton argument be supplied by end of October. Liberty to apply for further directions regarding any applications to intervene. Costs in appeal.
[2005] EWCA Civ 1621
Lord Justice Rix
Lord Justice Moore-Bick
A2/2005/0949(B)
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LIVERPOOL COUNTY COURT
(HIS HONOUR JUDGE STEWART QC)
Royal Courts of Justice
Strand
London, WC2
MR NICHOLAS BACON (instructed by Messrs Websters, London WC2A 1HR) appeared on behalf of the Appellant
MR JEREMY MORGAN QC and MR BEN WILLIAMS (instructed by Messrs Keoghs, Bolton BL6 4SE) appeared on behalf of the Respondent
This is an application made by Mr Jeremy Morgan QC on behalf of Halton Borough Council, who are respondents to an appeal pending before the Court of Appeal, that the court should today decide both that the appellant's pending application to adduce fresh evidence to the Court of Appeal on her appeal should be heard in advance of hearing of the appeal, and indeed should be decided today.
The context of this application is that on 13th September 2005 this court gave permission to the appellant, Mrs Deborah Garrett, to appeal against the judgment of His Honour Judge Stewart QC dated 5th April 2005, whereby he held that a non-disclosure of interest by Mrs Garrett's solicitors, Messrs Websters, prior to entering into a conditional fee agreement ("CFA") with her, was material in a sense discussed by this court in Hollins v Russell [2003] 1 WLR 2487, and therefore rendered the CFA unenforceable pursuant to section 58 of the Courts and Legal Services Act 1990 (as amended by the Access to Justice Act 1999).
The essential facts appear to be this. The solicitors told Mrs Garrett that they had no interest in the premium to be paid under the after-the-event policy recommended to her as part of the conditional fee agreement. However, they did tell her that they were panel members of Ainsworth, who were claim handlers and who required the policy, which was underwritten by NIG.
The District Judge found that in those circumstances Websters, the solicitors, had an interest which was not disclosed, and that finding was not permitted to be debated on appeal from the District Judge to Judge Stewart. Therefore that is, for present purposes, a closed book. What may not be a closed book is exactly what was the interest which, in breach of their obligations, the solicitors failed to disclose.
At any rate, the sole issue before Judge Stewart (and the sole issue which arises to the Court of Appeal on the pending appeal now) is what I can compendiously describe as an issue relating to the materiality of the breach which has been found, and which I have described as a closed book. That materiality is debated, for instance, in paragraphs 7, 7(b) and 11 of Judge Stewart's judgment. Aspects of that materiality are raised in Mrs Garrett's grounds of appeal for which she has been given permission.
As a result of the discussion in court today, it has been helpfully agreed by Mr Nicholas Bacon, on behalf of Mrs Garrett, the appellant, that ground 2, which submits that the learned judge was wrong to have found that the...
To continue reading
Request your trial
-
W v Veolia Environmental Services (UK) Plc
...been made the position was reversed. He relies on decisions of the Court of Appeal in McMillan Williams v Range [2004] 1 WLR 1858 and Garrett v Halton [2007] 1WLR 554. These are put forward to support the proposition that a contract must be capable of interpretation at the point when it is ......
-
Diag Human SE v Volterra Fietta (A Firm)
...been reflected, as Mr Carpenter QC set out in his skeleton argument, by the case law. In particular, in Garret v Halton Borough Council [2007] 1 WLR 554 where Dyson LJ described the nature of the statutory language, which did not require detriment to the client. He said the following: “ [2......
-
Birmingham County Council v Forde
...effect either upon the protection afforded to the client or upon the proper administration of justice?” 37 In Garret v Halton BC [2007] 1 WLR 554 the Court of Appeal held [in para 19] that: “The “protection afforded to the client” is a reference to the protection afforded by virtue of the ......
-
Diag Human SE v Volterra Fietta (A Firm)
...submission in cases involving challenges to CFAs. It was answered by Dyson LJ giving the judgment of the Court in Garrett v Halton BC [2006] EWCA Civ 1017, [2007] 1 WLR 554 at [27]–[30] where he said: “27. … The starting point must be the language of section 58(1) and (3) of the 1990 Act.......
-
The Enforceability Of Conditional Fee Agreements: Diag Human v Volterra Fietta [2022] EWHC 2054 (QB)
...could not be understood in isolation as it had been amended by later Court of Appeal decisions such as Garret v Halton Borough Council [2007] 1 WLR 554 and Awwad v Geraghty and Co [2001] QB 570. Those two cases incorporated and explained the public policy incentive behind regulating CFAs. I......
-
Legal Costs: Another Stealth Tax?
...made for the benefit of consumers, they are made to be complied with. The Court of Appeal decision in Garrett v Halton Borough Council [2006] EWCA Civ1017 involves the simple issue of solicitors recommending an ATE insurance product and not declaring a financial benefit to the firm. Indeed,......
-
Book Review: The Modern Cy-près Doctrine: Applications and Implications By Rachael P. Mulheron (2006)
...at paras. 1–3, 15, and 17 (discussing aim of CFArelated provisions in Access to Justice Act). 130 Garrett v. Halton Borough Council, [2006] EWCA Civ 1017 (describing litigation over compliance with CFA regulations prior to 2005, citing Hollins, ibid. at paras. 1–36, for detailed history of ......
-
Introduction
...at paras. 1–3, 15, and 17 (discussing aim of CFArelated provisions in Access to Justice Act). 130 Garrett v. Halton Borough Council, [2006] EWCA Civ 1017 (describing litigation over compliance with CFA regulations prior to 2005, citing Hollins, ibid. at paras. 1–36, for detailed history of ......
-
Multiple Defendant Class Actions in Quebec: Recent Developments in the Jurisprudence
...at paras. 1–3, 15, and 17 (discussing aim of CFArelated provisions in Access to Justice Act). 130 Garrett v. Halton Borough Council, [2006] EWCA Civ 1017 (describing litigation over compliance with CFA regulations prior to 2005, citing Hollins, ibid. at paras. 1–36, for detailed history of ......
-
Rethinking the Approval of Class Counsel's Fees in Ontario Class Actions
...at paras. 1–3, 15, and 17 (discussing aim of CFArelated provisions in Access to Justice Act). 130 Garrett v. Halton Borough Council, [2006] EWCA Civ 1017 (describing litigation over compliance with CFA regulations prior to 2005, citing Hollins, ibid. at paras. 1–36, for detailed history of ......