Higgins & Company Lawyers Ltd v Evans
| Jurisdiction | England & Wales |
| Judge | Mr Justice Pushpinder Saini |
| Judgment Date | 24 October 2019 |
| Neutral Citation | [2019] EWHC 2809 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QA-2019-000049 |
| Date | 24 October 2019 |
[2019] EWHC 2809 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Pushpinder Saini
Case No: QA-2019-000049
Roger Mallalieu (instructed by Higgins & Co Lawyers Ltd) for the Appellant
Andrew Roy (instructed by Fieldfisher LLP) for the Respondent
Hearing dates: 17 October 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment is divided into 10 sections as follows:
I. Overview
This appeal concerns the enforceability of certain provisions of a Conditional Fee Agreement (CFA) under which the estate of a deceased litigant party to the CFA is said to be liable for basic charges in respect of legal work undertaken by his solicitors prior to his death. The issue is of some importance because the clause which is said to give rise to this financial consequence incorporates the terms of the Law Society Model Form Conditional Fee Agreement. That Model Agreement is widely used within the profession for personal injury claims and has been in its current form since at least 2014.
The clause of the CFA in issue (“the Clause”) is in the following terms:
“(c) Death
This agreement automatically ends if you die before your claim for damages is concluded. We will be entitled to recover our basic charges up to the date of your death from your estate.
If your personal representatives wish to continue your claim for damages, we may offer them a new conditional fee agreement as long as they agree to pay the success fee on our basic charges from the beginning of the agreement with you.”
By a judgment and consequential order dated 5 February 2019, Master McCloud held that the Clause was unenforceable under what was called the Interfoto principle, referring to the well-known case Interfoto Picture Library Limited v Stiletto Visual Programmes Limited [1989] QB (CA).
The CFA in issue in these proceedings was signed by the deceased, Mr. Frank William Hughes (“Mr. Hughes”) on 19 April 2016. In her succinct judgment, to which I will refer to in more detail below, the Master held that the Clause was void and unenforceable on the basis that it was unusual and onerous and was not brought reasonably and fairly to the attention of the deceased client.
The Master's judgment was given in the context of a solicitor-client assessment of a Bill of Costs (“the Bill”) presented by the Appellant firm, Higgins & Co. Lawyers Limited (“the Firm”) to the Respondent (“Dr. Evans”), the executor of the estate of the late Mr. Hughes (“the Estate”). The Firm claimed that the costs in the Bill were a liability of Mr. Hughes' Estate, relying upon the Clause. The Master assessed the Bill at nil (based on her finding that the Clause could not be relied upon) but left open the possibility that the Firm might find some other basis on which to claim costs from the Estate.
Permission to appeal against Master McCloud's Order was granted by Stewart J on 2 April 2019.
As appears below, I have had the benefit of much more detailed argument than the Master. The cogent written and oral submissions from Counsel before me (neither of whom appeared below) have ranged substantially beyond the points raised before the Master in what seems, from the transcript, to have been quite a short hearing.
I have also been referred to a number of crucial authorities which were regrettably not drawn to the attention of the Master. Further, the Respondent has advanced new points. The first is on the construction of the CFA and the second concerns the enforceability of the Clause under the Consumer Rights Act 2015. Although the Master did not address these points they were raised in the Points of Dispute.
The parties eventually agreed that, although this is strictly an appeal from the Master's decision, I should address these new points. I agreed to take that course for reasons I will set out below. The parties also took me to the evidence in some detail with an invitation to make my own findings. This was because the issues argued before me went beyond points the Master was required to decide and the evidential record had expanded somewhat since the matter was before her.
II. The Facts
On 2 March 2016, Mr. Hughes, a retired engineer, was diagnosed with asbestosis. He was at that time 89 years of age. On or about 4 March 2016, he instructed the Firm to pursue a claim for damages for personal injuries in relation to that diagnosis and his exposure to asbestos during his employment. As I will explain in more detail below, on 19 April 2016, Mr Hughes signed the CFA at his home in the presence of the Firm's agent, Mr. Jacewicz.
I will return to the chronology, but should record at this stage the written evidence of Mr. Morgan (the Respondent's solicitor) to the effect that following Mr. Hughes' death on 30 April 2018 a number of leaflets relating to the group Asbestos Victim Support and Asbestosis.org.uk were found in Mr Hughes' house. There was no evidence before the Master or before me as to whether Mr. Hughes had ever read any of these documents, whether, if he did, he had any particular understanding of them or whether, and if so to what extent, he relied on anything contained within them. There were no findings made in this regard and I can make no findings. I will however summarise what was put before me because the Respondent does seek to rely on such materials in relation to the arguments on construction and fairness of the Clause.
As stated above, Mr. Hughes was introduced to the Firm by the group Asbestos Victim Support, the Firm being on that group's panel. I was referred to the group's literature which sets out the following as advantages of using a panel firm:
“… all of the Solicitors that make it onto our panel must first agree to work on a “no-win no-fee basis”, so you will not need to pay a penny to pursue your claim – and there will be no hidden, nasty surprises.”
The Respondent also referred me in some detail to the Firm's own literature where under the title “Why instruct Higgins & Co” it is said:
“The Higgins & Co “no-nonsense” approach to claims ensures that your claim will be dealt with in a clear, simple manner with no jargon or hidden surprises for you to worry about along the way…
Benefit from our NO WIN – NO FEE – NO DELAY philosophy
…We guarantee that our success fee, including VAT, will not be any more than 25% leaving you with 75% of your compensation (less the cost of any After the Event Insurance Policy).
Pay nothing from the beginning, simply make your claim and we will do the rest
…With Higgins & Co you don't have to worry about any of the fees, before, during or after.”
In addition, Mr. Morgan made reference to certain entries from the Asbestosis.org.uk website which I was taken to in submissions. Again, there was no evidence that these entries had been seen by Mr Hughes, let alone whether, if he did, he had any particular understanding of them or whether and, if so, to what extent he relied on anything contained within them. Unsurprisingly, there were no findings made in this regard. Equally I am unable to make findings.
The more detailed and uncontradicted evidence before the Master and before me as to how Mr. Hughes came to sign the CFA may be summarised as follows:
(a) On 4 March 2016, Ms. Crowder, a solicitor in the Firm, and Mr Hughes had a telephone conversation. Mr Hughes was informed that if the Firm considered there were ‘reasonable prospects’ it would offer a CFA.
(b) On 4 March 2016 the Firm wrote to Mr Hughes requesting some initial information and enclosing a leaflet. On 17 March 2016 the Firm wrote to Mr. Hughes making some further enquiries which are not material.
(c) On the 15 April 2016, there was a 30 minute telephone conversation between Ms. Crowder and Mr Hughes. The relevant part of the attendance note before me records the following:
“I explained that we were willing to take this on under a CFA. I discussed the funding options and told him how the CFA works. I explained that if the claim is successful that we would be entitled to a success fee in addition to claiming the basic costs from the Defendant's insurers. I explained that the success fee would come out of his damages and would be capped at 25% of the damages for injuries and any past financial losses.”
(d) Nothing in the attendance note, or indeed any other document recording pre-CFA communications with Mr. Hughes, refers to what would happen under the CFA in the event of his death.
(e) On 15 April 2016, the Firm wrote to Solicitor Assist UK Limited (agents) instructing them to take the relevant funding documentation to a meeting with Mr. Hughes at his home. The letter expressly required the agent to take 2 copies of the documentation, one copy of which should be left with the client and one signed and returned. On its third page, the letter repeated this point in bold capitals.
(f) On 15 April 2016, the Firm wrote to Mr. Hughes enclosing a copy of the CFA and various other items of documentation and on 19 April 2016, Mr Jacewicz, an employee of the agents, attended on Mr Hughes. In his written evidence he said that he had no particular recollection of that meeting. In his statement he sets out his usual practice, including that he would leave a copy of the paperwork with the client. Mr Jacewicz further states that he would always give a client an opportunity to ask questions before allowing them to sign the documentation. There is no reason to doubt that his evidence is accurate and truthful.
(g) On that day and in front of Mr. Jacewicz, Mr. Hughes signed the CFA.
(h) Dr. Evans' evidence...
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