Julie Natasha Pine v Das Legal Expenses Insurance Company Ltd
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Richard Seymour Q.C |
| Judgment Date | 25 March 2011 |
| Neutral Citation | [2011] EWHC 658 (QB) |
| Date | 25 March 2011 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ09X0 |
[2011] EWHC 658 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
His Honour Judge Richard Seymour Q.C.
(sitting as a Judge of the High Court)
Case No: HQ09X0
Oliver Hyams (instructed by the claimant on a public access basis) for the claimant
Gavin Hamilton (instructed by Lyons Davidson) for the defendant
Hearing date: 14 March 2011
.:
Introduction
The claimant in this action, Miss Julie Pine, has been represented before me by Mr. Oliver Hyams, a member of the Bar of England and Wales, instructed on a public access basis. Miss Pine desires to instruct Mr. Hyams on the same basis in another action in this court, that bearing the number HQ08X04311, in which she is the defendant and the claimants are Royds LLP ( "Royds"). It is convenient in this judgment to refer to the action numbered HQ08X04311 as "the Solicitors Action". The Solicitors Action was commenced by a claim form issued on 31 October 2008.
In the Solicitors Action Royds are claiming legal fees of some £126,000 alleged to be due to them from Miss Pine in respect of acting for her in proceedings ( "the Employment Proceedings") in an employment tribunal against Cinven Ltd. ( "Cinven"). Cinven formerly employed Miss Pine. As I understand it, for the purposes of the Employment Tribunal some 16 lever arch files of documents were produced.
Miss Pine resists the claim of Royds in the Solicitors Action on the grounds that Royds allegedly conducted the Employment Proceedings negligently. She has made a counterclaim in the Solicitors Action for damages in respect of the alleged negligence of Royds. Two members of the Bar who acted on behalf of Miss Pine in the Employment Proceedings have been joined as defendants to the counterclaim. All of the defendants to the counterclaim resist the claims of Miss Pine and have instructed solicitors and counsel to represent them.
On 5 June 2006 Miss Pine entered into a policy of insurance ( "the Policy") in the form of a Hiscox 505 Home and Contents Policy. She has maintained the Policy ever since. The Policy included, as Section D, cover in respect of "Family legal protection". That cover was, and is, provided by the defendant, DAS Legal Expenses Insurance Co. Ltd. ( "DAS").
By a letter dated 6 November 2008 Miss Pine gave notice to DAS of a possible need for cover under the Policy in respect of the claim of Royds in the Solicitors Action. Miss Pine was also entitled to the benefit at that time of legal expenses cover provided by another insurer, First Assist. First Assist was invited to, and did, agree that Miss Pine instruct Mr. Hyams in the Solicitors Action on a public access basis. However, the limit of indemnity under the First Assist policy was reached and Miss Pine made a claim for cover in respect of the Solicitors Action against DAS. She wished to continue to instruct Mr. Hyams in that action on a public access basis and that DAS should indemnify her in respect of her liability to pay Mr. Hyams his reasonable and necessary fees for so acting. The position of DAS as explained in the Amended Defence in this action is that it is prepared for Mr. Hyams to be retained to conduct the Solicitors Action on behalf of Miss Pine, and to indemnify her in respect of his reasonable and necessary fees of so acting, but that it was not prepared for Miss Pine herself to instruct Mr. Hyams on a public access basis. DAS required that Mr. Hyams be instructed through a solicitor.
In this action Miss Pine sought, as it was put at paragraph 5 of the Amended Particulars of Claim,
" a Declaration that she is entitled, pursuant to The Insurance Companies (Legal Expenses Insurance) Regulations 1990 and under the terms of her contract, to choose her own legal representative, namely a public access barrister."
While that was the principal focus of her claims, she also sought, as set out at paragraph 7 of the Amended Particulars of Claim,
" 7.1 Her full costs in this matter.
7.2 Damages for all losses suffered in relation to other proceedings in which the insurance is relied upon, which arise from the Defendant's refusal to indemnify the Claimant in respect of her choice of legal representative.
7.3 Interest on such damages as are awarded to her, pursuant to section 35A of the Supreme Court Act 1981 at such rate and for such period as the Court thinks fit."
The claims at paragraphs 7.1 and 7.3 do not require further comment at this stage. No particulars of damage were pleaded in the Amended Particulars of Claim. The only evidence of loss or damage which it was sought to adduce was a third witness statement of Miss Pine, made only two working days before the commencement of the trial. I shall come, later in this judgment, to the claim for general damages for breach of contract explained in that third witness statement. Other matters canvassed in that witness statement were not, in the event, pursued.
The real question at issue in this action was whether Miss Pine was entitled to indemnity under the Policy in relation to costs incurred by her in instructing Mr. Hyams to act on her behalf on a public access basis in the Solicitors Action. The logical place at which to start a consideration of whether or not she is so entitled is the material terms of the Policy.
The terms of the Policy
Section D of the Policy included the following provisions which are presently material:-
" Extra definitions
Appointed Representative
The lawyer, accountant or other suitably qualified person who has been appointed to act for you in line with the terms of this section.
Costs and expenses
a) Legal costs
All reasonable and necessary costs which the appointed representative may charge on a standard basis. Also the costs your opponents have to pay in civil cases if you have been ordered to pay them, or pay them with our agreement.
…
What is covered
This section covers you. … We agree to provide the insurance in this section as long as:
…
d) for civil claims, it is always more likely than not that you will get back damages (or get any other legal remedy which we have agreed to) or make a successful defence.
…
If you use an appointed representative, we will pay the costs and expenses for this.
The most we will pay for all claims resulting from one or more event arising at the same time or from the same cause is £50,000.
1. Contract disputes
We will negotiate for your legal rights in a contractual dispute arising from an agreement or an alleged agreement which you have entered into for:
a) buying or hiring any goods or services; …
…
Claims conditions applying to this section
1. Once you have sent us the details of your claim and we have accepted it, we will start to deal with your legal problem.
…
We normally deal with claims through our legal claims centre but sometimes we use appointed solicitors.
Please do not ask for help from a solicitor or accountant before we have agreed. If you do, we will not pay the costs involved.
2. a) We can take over and control, in your name, any claim or legal proceedings at any time. We can negotiate any claim on your behalf.
b) You are free to choose an appointed representative (by sending us a suitably-qualified person's name and address) if:
• we agree to start court proceedings and it becomes necessary for a lawyer to represent your interests in those proceedings;
• there is a conflict of interest.
We may choose not to accept your choice, but only in exceptional circumstances. If there is a disagreement over the choice of appointed representative in these circumstances, you may choose another suitably-qualified person.
c) In all circumstances except those in 2. b) above, we are free to choose an appointed representative.
d) We will appoint a representative and the appointed representative must co-operate fully with us at all times.
e) We will have direct contact with the appointed representative.
f) You must co-operate fully with us and the appointed representative, and must keep us up to date with the progress of the claim.
g) You must give the appointed representative any instructions that we may need.
3. a) You must tell us if anyone offers to settle a claim.
…
4. a) You must tell the appointed representative to have costs and expenses taxed, assessed or audited, if we ask for this.
b) You must take every step to recover costs and expenses that we have to pay and must pay us any costs and expenses that are recovered.
…
7. If we and you disagree about the choice of appointed representative, or about the handling of a claim, we and you can choose another suitably-qualified person to decide the matter. We and you must both agree to the choice of this person in writing. Failing this, we will ask the president of a relevant national law society to choose a suitably-qualified person.
Whoever loses the dispute must pay all the costs of resolving the disagreement.
…
Conditions
The following extra conditions apply to the whole of this section.
1. You must:
a) keep to the terms and conditions of this section;
b) take reasonable steps to keep any amount we have to pay as low as possible;
c) try to prevent anything happening that may cause a claim;
d) send us everything we ask for, in writing; and
e) give us full details in writing of any claim as soon as possible and give us any information we need.
…"
On the face of those provisions, subject to the limit of indemnity, DAS agreed to indemnify Miss Pine, in the events which have happened, the costs reasonably and necessarily incurred by her which her lawyer charged on a standard basis for his services in acting for her in the Solicitors Action. The effect of clause...
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