Mohammed Azim v Tradewise Insurance Services Ltd
| Jurisdiction | England & Wales |
| Judge | Master Leonard |
| Judgment Date | 22 August 2016 |
| Neutral Citation | [2016] EWHC B20 (Costs) |
| Date | 22 August 2016 |
| Court | Senior Court Costs Office |
| Docket Number | Case No: A22YP074, SCCO Reference: CL1505801 |
[2016] EWHC B20 (Costs)
IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE
Sitting as a judge of the County Court at Bow
Thomas More Building
Royal Courts of Justice
Strand London WC2A 2LL
Master Leonard
Case No: A22YP074, SCCO Reference: CL1505801
Matthew Smith (instructed by Russell Worth) for the Claimant
Kevin Latham (instructed by Chan Neill) for the Defendant
Hearing dates: 31 May 2016
Judgment Approved
This is the detailed assessment of the costs of the Claimant, payable by the Defendant following the acceptance by the Claimant, on 20 January 2015, of a Part 36 offer of £3,500.
The underlying claim was for personal injury following a road traffic accident on 15 October 2011. Three firms of solicitors represented the Claimantin pursuing that claim.
The first was Minster Law, which according to the bill of costs acted between17 October 2011 and 14 November 2012 under the terms of a Conditional Fee Agreement ("CFA") dated 19 October 2011. The second firm was TLW Solicitors ("TLW"), which appears to have received the file on about 16 November 2012 and to have acted for the Claimant fromthat date until 23 July 2014. TLW acted under a Conditional Fee Agreement ("CFA") dated 17 January 2013 ("the TLW CFA"), the terms of which provided for it to have retrospective effect to the date of initial instructions.
The third firm was Russell Worth Limited, to which firm the TLW CFA was (on the Claimant's case) assigned on 23 July 2014. Russell Worthhave acted for the Claimant from 24 July 2014 to date.
The Defendant takes issue with the validity of the July 2014 assignment and, in consequence, with the Claimant's right to recover any costs under the TLW CFA. The arguments in that respect have evolved to incorporatedisclosure by the Claimant of key documents and service of supplemental Points of Dispute and Replies.
I should confirm my understanding (as confirmed by Mr Smith and Mr Latham for the Claimant and the Defendant respectively) that the parties require me to reach conclusions on the issues identified and addressed in submissions in the course of the hearing before me on 31 May, rather than by strict reference to the Points of Dispute and Replies.
The key issues to be addressed were helpfully summarised by counsel in these terms. The first is whether the Claimant's retainer with his solicitors had been terminated by them at the time of the assignment arrangement entered into on 23 July 2014. The second is whether it is possible lawfully to assign the TLW CFA in the manner attempted by the Claimant. The third is whether (assuming thatlawful assignmentis possible) such assignment was effective.
The Evidence
I have before me copies of the CFA of 17 January 2013;a letter dated 23 July 2014 from TLW to Russell Worth; a letter from TLW to the Claimant, again dated 23 July 2014; and a consent form addressed to TLW and Russell Worth and signed by the Claimant on 31 August 2014.
The CFA incorporates standard conditions expressly based upon the Law Society's precedent. Its termination provisions, accordingly, allow the Claimant to end the agreement at any time and allow TLW to end it under certain specified circumstances. It is not suggested by either party that any of those circumstances apply in this particular case.
TLW's letter of 23 July 2014 to Russell Worth reads, under the heading "Assignment of CFAs":
We refer to the conditional fee agreements listed in the attached schedule between us and those persons named for the provision of legal services in respect of personal injury claims ("Contracts").
Pursuant to and for the consideration set out in the Sale and Purchase Agreement between us and you dated 23 rd July 2014, we assign all our rights, title, interest and benefit in and to the Contracts to you (the 'Agreement') …"
The schedule referred to includes the Claimant's CFA.
TLW's letter of the same date to the Claimant, under the heading "Transfer of your Claim" reads:
"As you are aware, we are currently acting for you in respect of your Personal Injury ('Claim').
We have recently received an influx of new work as a resulting (sic) of securing a new contract, however unfortunately have been unable to replace a couple of key staff who are currently on maternity leave. This means that existing staff have more cases to deal with than we would normally wish.
Rather than have this impact on the quality of service which you receive or cause any delays to the settlement of your claim, we have put in place arrangements to pass over the handling of your case to another firm which specialises in cases such as yours. This means that you can be sure that your case can be handled in the best way possible. It is, of course, your choice as to whether you transfer to the firm we recommend or another firm and we provide further details below as to the next steps and what you need to do…
We have concluded a business arrangement with a well-established personal injury law firm, Russell Worth Limited. …
Russell Worth Limited has agreed to continue to handle your Claim on the same "no win, no fee" terms set out in the conditional fee agreement ("CFA") between us. Systems have already been put in place between us and Russell Worth Limited to effect a swift and seamless transfer of your file…
Your Claim will be handled by Russell Worth Limited on the same "No Win, No Fee" terms set out in the conditional fee agreement ("CFA") between us. You are, however, asked to sign a consent form which is enclosed…
If we do not receive a completed form, we will assume that you are content for Russell Worth Limited to continue to act for you, unless you tell Russell Worth Limited otherwise.
By returning the consent form to Russell Worth Limited, or if you have not notified either ourselves or Russell Worth Limited within 7 days of the date of this letter that you do not wish for case (sic) to be transferred to Russell Worth Limited, you will be deemed to consent to the transfer of any of your personal data held by us to Russell Worth Limited… and also to agree to the assignment of the CFA and its continued application to Russell Worth Limited…
… You are under no obligation to consent to the transfer of your Claim and file to Russell Worth Limited."
The Consent Form signed by the Claimant on 31 August 2014 authorises TLW to transfer money on account, relevant papers and data, including sensitive personal data as defined in the Data Protection Act, to Russell Worth Limited. It adds:
"I also confirm my consent to the assignment of the CFA to Russell Worth Limited and agree that, from now on, Russell Worth Limited may perform the solicitors' obligations under the CFA in substitution for TLW Solicitors and that, from now on, my responsibilities under the CFA shall extend to Russell Worth Limited…"
Decided Cases
I have, in the course of submissions, been referred to judgments in Jenkins v Young Brothers Transport Ltd [2006] EWHC 151 (QB), Jones v Spire Healthcare Ltd (H.H. Judge Graham Wood QC, the County Courtat Liverpool), Webb v London Borough of Bromley (SCCO 18 February 2016, Master Rowley) and Budana v Leads Teaching Hospitals NHS Trust (District Judge Besford, the County Court at Kingston-Upon-Hull, 4 February 2016).
I will make three brief observations about the judgments to which I have been referred. The first is that, with the exception of Jenkins, none of them are to be regarded by a costs judge as binding. The second is that the decision in each of them turned upon the application of particular principles to particular facts. The third is that each judgment, in its particular context, nonetheless offers a helpful analysis ofthe principles which I have to apply to the facts of this case.
Whether the CFA Was Terminated by TLW
I should mention that the Defendant's supplemental Points of Dispute pursue arguments based upon the proposition that upon "selling" the TLW CFA to Russell Worth, TLW received payment of fees under the CFA and thereby terminated it: alternatively, that thefees so earned by TLW, being for present purposes unquantified, are irrecoverable. I have been unable to identify a sound basis for either argument, but as they did not fall within the issues to be determined, as identified by counsel at the hearing and were not pursued by Mr Latham in his oral submissions for the Defendant I do not believe that I need to address it further.
Mr Latham focused instead upon the Defendant's submission to the effect that TLW terminated the TLW CFA. He referred me to the terms of the letter of 23 July 2014 to the Claimant, incorporating as it did an unequivocal statement to the effect that TLW would not continue to represent him, and drew my attention to the finding of District Judge Besford in Budana (at paragraphs 41–46 in particular) to the effect that the receiving party's solicitors in that particular casehad terminated his CFA before purporting to assign it, so forfeiting any right to payment. The facts in Budana were similar to this case in that the receiving party's solicitors had decided to stop handling personal injury litigation and to put in hand arrangements to transfer their client's case to another experienced firm. They had written to their client in very similar terms to TLW's letter to the Claimant of 23 July 2014.
Mr Latham also referred me to Master Rowley's findings in Webb (in particular at paragraphs 42, 43 and 44) to the effect that the receiving party in that particular case had agreed to the termination of her current solicitors' contract of retainer and the creation of another retainer with her new solicitors. Mr Latham suggests that such was the position here: TLW, he submits, terminated their retainer,...
To continue reading
Request your trial