Gempride Ltd v Jagrit Bamrah
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hickinbottom,Lord Justice Davis |
| Judgment Date | 21 June 2018 |
| Neutral Citation | [2018] EWCA Civ 1367 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2016/4559 |
| Date | 21 June 2018 |
[2018] EWCA Civ 1367
Lord Justice Davis
and
Lord Justice Hickinbottom
Case No: A2/2016/4559
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT CENTRAL LONDON
HIS HONOUR JUDGE DAVID MITCHELL
Case No 1UD01243
Royal Courts of Justice
Strand, London, WC2A 2LL
Nicholas Bacon QC and Katie Scott (instructed by Taylor Rose TWKW Limited) for the Appellant
Kuldip Singh QC and Suzanne Rab (instructed by Radcliffes Le Brasseur) for the First Respondent
The Second Respondent did not appear and was not represented
Hearing dates: 9–10 May 2018
Further written representations: 25 May 2018
Introduction
The First Respondent (“Ms Bamrah”) was admitted as a solicitor in December 1999. Since 3 July 2008, she has been in practice as a sole practitioner under the style Falcon Legal Solicitors (“Falcon Legal”). The firm was incorporated in 2012, but continued to trade under the same name.
Falcon Legal acted for Ms Bamrah as claimant in a successful personal injury claim against the Appellant (“Gempride”). Gempride was ordered to pay Ms Bamrah's costs.
This is an appeal against the Order of His Honour Judge David Mitchell (sitting with District Judge Langley as an assessor) dated 19 December 2016, allowing an appeal against the Order of Master Leonard sitting as a Deputy District Judge dated 5 March 2014 in which the Master as part of the detailed assessment, exercising powers under CPR rule 44.11, disallowed Falcon Legal's profit costs above the litigant-in-person rate because Ms Bamrah on behalf of the firm (i) had certified the bill of costs filed and served for assessment with an hourly rate substantially in excess of that which she as a client was contractually bound to pay the firm and (ii) had given an answer to a Point of Dispute on that bill that was untrue or misleading, namely that she did not have before the event legal expenses insurance (“BTE insurance”) available in respect of the costs of the claim.
The Scope of CPR Rule 44.11
Parliament requires that those who conduct litigation or exercise a right of audience on behalf of others are subject to a rigorous regulatory scheme, and have an overriding duty to the court.
Section 13 of the Legal Services Act 2007 (“the 2007 Act”) restricts the performance of “restricted legal activities” to persons who are either authorised or exempt, including the employees of such persons (section 15). Section 12(1) defines “restricted legal activities” to include the conduct of litigation (section 12(1)(b)) and the exercise of a right of audience (section 12(1)(a)). To conduct litigation or exercise a right of audience without being entitled to do so is a criminal offence (section 14).
The provisions relating to exempt persons are irrelevant to this appeal. By section 18, an “authorised person” is a person who is authorised to carry on the relevant activity by an approved regulator subject to oversight by the Legal Services Board, itself an approved regulator.
Amongst others, the Law Society, the General Council of the Bar and the Association of Law Costs Draftsmen are approved regulators in relation to the conduct of litigation and the exercise of a right of audience (section 20(2) and (3) of, and Part 1 of Schedule 4 to, the 2007 Act). In October 2011, the Association of Law Costs Draftsmen delegated its relevant functions under the 2007 Act to the Costs Lawyers Standards Board (“the CLSB”). The CLSB may therefore authorise law costs draftsmen to conduct litigation and exercise a right of audience.
Approved regulators are responsible for promoting the “regulatory objectives” set out in section 1(1), which include promoting and maintaining adherence to the “professional principles” set out in section 1(3) of the 2007 Act (sections 3(2)(b) and 28). These include:
“(b) that authorised persons should maintain proper standards of work
…
(d) that persons who exercise before any court a right of audience, or conduct litigation in relation to proceedings in any court, by virtue of being authorised persons should comply with their duty to the court to act with independence in the interests of justice”.
A regulated person has a general obligation to comply with the regulatory scheme as it applies to him (section 176); and, in conducting litigation and exercising any right of audience, has an overriding duty to the court in question to act with independence in the interests of justice (section 188(2) and (3)). An authorised person is therefore subject to not only regulation by a professional regulator (which includes provision for sanctions for professional misconduct) but also supervision directly by the court.
In the conduct of litigation, the court is entitled to assume that an authorised person such as a solicitor will comply with his duty to the court. As Judge LJ put it in Bailey v IBC Vehicles Limited [1998] 3 All ER 570 (“ Bailey”) at page 574j:
“As officers of the court, solicitors are trusted not to mislead or to allow the court to be misled. This elementary principle applies to the submission of a bill of costs”.
That theme was taken up by Henry LJ in a concurring judgment (at pages 575g–576c), with which Butler-Sloss LJ expressly agreed.
“ RSC Order 62 rule 29(7)(c)(iii) [now CPR PD 47 paragraph 5.21] requires the solicitor who brings proceedings for taxation to sign the bill of costs. In so signing he certifies that the contents of the bill are correct. That signature is no empty formality. The bill specifies the hourly rates applied, and the care and attention uplift claimed. If an agreement between the receiving solicitor and his client… restricted (say) the hourly rate payable by the client, that hourly rate is the most that can be claimed or recovered on taxation…. The signature on the bill of costs under the rules is effectively the certificate by an officer of the court that the receiving party's solicitors are not seeking to recover in relation to any item more than they have agreed to charge their client under a contentious business agreement.
The court can (and should unless there is evidence to the contrary) assume that his signature to the bill of costs shows that the indemnity principle has not been offended….
… [T]he other side of a presumption of trust afforded to the signature or an officer of the court must be that breach of that trust should be treated as a most serious disciplinary offence.”
The rule number and terminology have of course subsequently changed; but the principles set out in that passage remain good. Indeed, they are well-established and trite law. Neither party before us suggested otherwise.
There are a number of provisions which reflect the court's supervisory function over authorised persons conducting litigation. Two are relevant in this appeal.
First, section 51(6) of the Senior Courts Act 1981, CPR rule 46.8 and CPR PD 46 paragraph 5 give the court the power, amongst other things, to order a legal representative to meet, or to disallow, “wasted costs” resulting from any improper, unreasonable or negligent act or omission of that representative. The jurisdiction is compensatory, and an applicant has to show a causal connection between the conduct of which complaint is made and the costs it seeks to have met or disallowed. I consider this jurisdiction below (see paragraph 17 and following).
Second, under the heading, “Court's powers in relation to misconduct”, CPR rule 44.11(1) and (2) (until 1 April 2013, numbered rule 44.14(1) and (2)) provide:
“(1) The Court may make an order under this rule where –
(a) a party or that party's legal representative, in connection with a summary or detailed assessment, fails to comply with a rule, practice direction or court order; or
(b) it appears to the court that the conduct of a party or that party's legal representative, before or during the proceedings or in the assessment proceedings, was unreasonable or improper.
(2) Where paragraph (1) applies, the court may –
(a) disallow all or part of the costs being assessed; or
(b) order the party at fault or that party's legal representative to pay costs which that party or legal representative has caused the other party to incur”.
An order under CPR rule 44.11 can only be made against a party or a party's legal representative. The jurisdiction is not compensatory: it is not necessary to show that the applicant has suffered any loss as a result of the misconduct. It is a jurisdiction intended to mark the court's disapproval of the failure of a party or of a legal representative to comply with his duty to the court by way of an appropriate and proportionate sanction.
“Legal representative” is defined in CPR rule 2.3(1) to be, and to be only, a:
“(a) barrister;
(b) solicitor
(c) solicitor's employee
(d) manager of a body recognised under section 9 of the Administration of Justice Act 1985; or
(e) person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes the conduct of litigation (within the meaning of that Act)”.
The focus of this appeal is upon rule 44.11(1)(b), the basis of the application being that Ms Bamrah's conduct had been “unreasonable or improper”. The CPR do not attempt any definition of “unreasonable or improper conduct” for these purposes, although paragraph 11.2 of CPR PD 44 provides:
“Conduct which is unreasonable or improper includes steps which are calculated to prevent or inhibit the court from furthering the overriding objective.”
It was however common ground before us that “unreasonable” and “improper” here have the same meanings as they have in the wasted costs provisions, for the reasons given by Dyson LJ in Lahey v Pirelli Tyres...
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