Mr Stephen Turner v Coupland Cavendish Ltd
| Jurisdiction | England & Wales |
| Judge | Rowley |
| Judgment Date | 31 October 2023 |
| Neutral Citation | [2023] EWHC 2721 (SCCO) |
| Court | Senior Courts |
| Docket Number | Case No: SC-2023-BTP-000472 |
[2023] EWHC 2721 (SCCO)
COSTS JUDGE Rowley
Case No: SC-2023-BTP-000472
IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE
Thomas More Building
Royal Courts of Justice
London, WC2A 2LL
Mark Carlisle (instructed by JG Solicitors) for the Claimant
“ Mark Brighton of Kain Knight (North & Midlands) Ltd for the Defendant
Hearing date: 14 September 2023
Approved Judgment
This judgment was handed down remotely at 10.00am on 31 st October 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
COSTS JUDGE Rowley
Introduction
Earlier this year half a dozen cases allocated to me requested assessments under the Solicitors Act 1974. They all required half day hearings according to the requests for detailed assessment and in each case the parties were represented by the same legal representatives. It seemed to make sense to list those cases consecutively so that they usefully employed a block of time before the court. The six cases were listed morning and afternoon between the 13 th and 15 th September.
It has transpired that the issues between the parties are such that the half day time estimates were insufficient and the hearings have been adjourned for further directions to take effect regarding evidence. The cases involve four different firms of solicitors and so there are different challenges within the points of dispute that have been served in the different cases.
However, before the further directions can take place in any of those cases, some preliminary issues needed to be dealt with and so I heard the parties' representatives – Mr Mark Carlisle for the claimant and Mr Mark Brighton for the defendant – ostensibly in the case of Turner, but in effect in relation to all six cases. Once those preliminary issues have been dealt with, the six cases can be dealt with individually rather than as a cohort of cases. Whilst there are some similarities in the points which I heard and indeed other points taken in the points of dispute, those matters are really little different from many other cases being brought before the court. They are all fact sensitive and so would be better dealt with individually.
As I say, I am treating the applications as having been made in the case of Turner for simplicity. The choice of that case was simply because the three issues raised by Mr Carlisle are all relevant to that case. (Indeed, the third issue only relates to Mr Turner's case.) The first application, regarding disclosure and inspection, also relates to the cases of Tyrrell and Wilkinson. The second application, which concerns Part 18 requests, also applies to the cases of McBride, Skutela, Perrett and Tyrrell.
The proceedings
Mr Turner commenced Part 8 proceedings on 29 March 2022 seeking an order for an assessment of the bill delivered to him by Coupland Cavendish Ltd on 11 March 2022. Such orders are made pursuant to s70 Solicitors Act 1974 and since the proceedings were brought within a month of the bill being delivered Mr Turner's entitlement to that assessment was absolute. There was a procedural hiatus as a result of awaiting the Court of Appeal's decision in Belsner v Cam Legal Services and so the order for assessment was not made until 17 February 2023. The directions given were for a breakdown of the costs to be served by 10 March 2023; for an electronic copy of the defendant's file to be provided to the claimant by 24 March 2023; and for points of dispute to be served by the claimant by 21 April 2023 with any reply by 19 May 2023.
Those steps were taken and a request for detailed assessment hearing was made in May 2023 with the hearing being listed in September 2023. Disputes about procedural compliance have occurred almost from the off. The breakdown and the solicitors file of papers were served upon the claimant. The points of dispute made complaint about the extent of the disclosure provided by the defendant. The claimant referred to recent case law which he said required him to put in a level of detail in respect of the points of dispute which the claimant's representatives did not consider they could achieve in the absence of further disclosure. The defendant's response was that the file had been disclosed as ordered and neither the points of dispute nor the correspondence between the representatives explained what was said to be missing.
The claimant's solicitor issued an application on 29 June in respect of all six cases and I made orders without a hearing at the beginning of July. I set aside the points of dispute in each case and ordered new points of dispute to be served by the beginning of August. I indicated in the reasons to that order that the defendant's statement that it had disclosed all of the documents in the file was sufficient for the claimants to put forward points of dispute in the expectation that there were no other documents that were to be provided at the detailed assessment hearing. For example, therefore, if time was claimed which did not appear to be supported by any attendance note, then the claimant could proceed on the basis that the time was either estimated or that the time had only been recorded on a computerised time recording system rather than any separate, detailed note.
The further points of dispute were then served and the defendant served replies together with a witness statement of Mr Carl Chapman (in the case of Turner) who was described as a solicitor and manager of the defendant. It appears that Mr Chapman produced the statement because the fee earners with conduct of the case at the relevant times were no longer with the company.
The Disclosure / Inspection Application
The first point of dispute and reply is as follows:
POINT OF DISPUTE
Call Recordings
The Defendant advised the Claimant at the outset that all calls are recorded for training and monitoring purposes (DB 43). All such records should be disclosed because –
1. CPR Part 31 applies to this claim
2. A recording is referred to at DB 41 and 43, which is a crucial conversation in relation to funding
3. Recordings of other calls will show whether the time recordings of calls with the client and others are accurate.
The Claimant's position is fully reserved pending receipt of such disclosure.
REPLY
1. Disclosure has taken place of the file. Call recordings are not stored on the file. No application exists for disclosure of documents not stored on the file.
2. The notes on pages 41 and 43 show a script. The Claimant has made no allegation that the script was not accurately delivered.
3. The line-by-line assessment appears to challenge the veracity of only 3 units of time. A query over 3 units of time cannot give rise to such sweeping disclosure.
This is merely a fishing expedition and should be dismissed.
The first application on the part of the claimant is for disclosure of the call recordings as referred to in the first point of dispute above. Mr Carlisle ran several different arguments as to the method by which the claimant ought to be entitled to receipt of the recordings.
One of these was to say that it was in fact simply the inspection of documents which had already been disclosed. As can be seen from the point of dispute and reply, the reference to telephone calls being recorded was contained in a script which would be delivered by the fee earner to the client, presumably at the outset of the retainer. I say presumably because I have not seen that document. Mr Carlisle's argument was that such recordings clearly exist and they are obviously relevant to the case. Since they are referred to in the file, they should be capable of inspection by the claimant.
In response, Mr Brighton pointed out that the reference to the recording was not in a statement of case or a witness statement, for example. He did not accept therefore that the call recordings had been disclosed. What had been disclosed was the solicitors' file of papers in accordance with the court order and, as it said in the reply, any call recordings were not stored on the solicitors' file.
It seems to me that this is a complete answer in respect of the argument that the documents have actually been disclosed. CPR 31.14 says that a party may inspect a document mentioned in a statement of case, a witness statement, a witness summary or an affadavit. That is a restricted group of documents which all share the quality of having been produced specifically for service on the opponent (as well as filing at the court). Documents referred to in such a statement or affidavit would obviously have been disclosed in a document which itself could count as evidence before the court. Those documents are a world away from a reference in a script on the client's file referring to the fact that the calls between the solicitor and client would be recorded.
In the absence of an argument that the call recordings have been disclosed already, the disclosure application runs into the ground procedurally. I ordered disclosure to be provided in respect of the solicitors' file. Whilst that is not standard disclosure via a list in form N265, it is standard disclosure in the sense that it is the disclosure that normally occurs in a case involving the assessment of a bill of costs rendered by a solicitor to their client. There is no scope for any further standard disclosure and Mr Carlisle was right to say that he did not specifically ask for this to occur, nor did he ask for a list verified by an affidavit or other procedural approach that has sometimes been taken.
It seems plain therefore that the application was for specific disclosure in terms of the call recordings. It was Mr Brighton's argument that specific disclosure required procedural steps to be taken which have not...
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