Susan Anne Plevin v Das Legal Expenses Insurance Company Ltd
| Jurisdiction | England & Wales |
| Judge | Pearce |
| Judgment Date | 24 May 2019 |
| Neutral Citation | [2019] EWHC 1339 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Case No: C40MA059 |
| Date | 24 May 2019 |
[2019] EWHC 1339 (Comm)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN MANCHESTER
CIRCUIT COMMERCIAL COURT (QBD)
Manchester Civil Justice Centre,
1 Bridge Street West,
Manchester
His Honour Judge Pearce
Case No: C40MA059
and
Mr Stewart Chirnside (instructed by Miller Gardner Limited) for the Claimant and Third Party
Mr Alexander MacDonald (instructed by Clyde and Co LLP) for the Defendant
Hearing dates: 5 th, 6 th and 7 th March 2019
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.
Introduction
In this claim the following relief is now sought:
a. By Mrs Plevin against DAS, declarations as to the extent of cover provided under an after the event legal expenses insurance policy issued by the Defendant to the Claimant;
b. By DAS against Miller Gardner 1, the repayment of monies advanced to Miller Gardner under a funding agreement and the repayment of premium received by Miller Gardner.
DAS originally sought further relief as follows:
a. Relief in a counterclaim against Mrs Plevin. In the light of how Mrs Plevin and Miller Gardner put their cases, the counterclaim is not pursued.
b. In the claim against Miller Gardner, relief in respect of a number of other cases (relating to the so-called “Schedule 1 Insureds”) insured by DAS. At the beginning of the trial, I struck that claim out for reasons given at the time.
In summary, Mrs Plevin purchased a PPI policy from Paragon Personal Finance Ltd (“Paragon”). She subsequently contended that she was entitled to relief under section 140B of the Consumer Credit Act 1974 in respect of that purchase. The claim was tried in the County Court in October 2012 (“the first CC trial”). Mrs Plevin was unsuccessful. She appealed to the Court of Appeal (“the CA appeal”), who, in December 2013, allowed her appeal. Paragon in turn appealed to the Supreme Court (“the SC Appeal”) who, in a hearing which led to judgment being handed down in November 2014, dismissed the appeal and remitted the matter to the County Court. The remitted hearing (“the second CC trial”) took place in March 2015. Mrs Plevin was awarded damages including interest in the sum of £4,500. The Judge adjourned the issue of costs. Paragon made various applications to the Supreme Court, including an
application to set aside the costs order made on the SC appeal (“the SC applications”). The SC applications were dismissed with costs in March 2017. On 22 June 2017, the adjourned costs issue from the second CC trial was dealt with in the County Court, the Judge ordering that Mrs Plevin should pay Paragon's costs from 27 January 2015 to 2 March 2015 but that otherwise there should be no order as to costs in respect of the claimThe full chronology of events, including relevant events relating to the funding of the claim, is set out in the Appendix to this judgment. I have also been greatly assisted by the narrative chronology set out in the skeleton argument of Mr Chirnside.
Miller Gardner's original agreement with DAS
In 2008, Miller Gardner was involved in representing claimants, such as Mrs Plevin, in cases arising from alleged financial mis-selling. Such a claim would be funded by a conditional fee agreement (“CFA”) backed in respect of liability for costs by an after the event insurance policy (“ATE”).
Miller Gardner started to issue ATE policies in respect of financial mis-selling claims with DAS (which operated under a trading name, 80e) under the delegated authority contained in an agreement between them and DAS called a Terms of Business Agreement (“TOBA”) entered into in 2008 2. That agreement contained a number of significant terms:
a. By Schedule II, the agreement dealt with procedures for the issuing of insurance. The insurance policy that was issued had three stages: stage A, pre-issue; stage B, post-issue; and stage C, trial. Reporting was required as follows:
“ The firm 3 shall carry out a continuous risk assessment of each case to ensure that the prospects of success remain at 60% or above and if prospects of success fall below 60% the firm must notify 80e immediately for confirmation that indemnity will remain in force….
On acceptance of each new case, 80e shall issue two copies of the 80e Schedule of Insurance. The firm shall promptly issue the Schedule together with the Policy wording to the Policyholder and a copy of the Schedule to the opponent.
The firm shall advise 80e of each case prior to the issue of proceedings (stage b of the policy). …
The firm must then advise 80e of the level of indemnity required to conclude the case (in multiples of £5,000) and confirm their assessment of prospects. The premium for stage b will then be individually assessed by 80e…
Once proceedings have been issued 80e will send an amended Insurance Schedule to the firm, applicable from the date of service. The firm shall promptly send the amended Schedule to the policyholder and a copy to the opponent….
For each case that reaches stage c of the policy, the firm shall provide an estimate of their disbursements to conclusion of the case together with an estimate of the opponent's costs and disbursements to conclusion. Where possible this estimate should be taken from the opponents listing questionnaire. The premium for stage c will then be individually assessed by 80e. Once assessed, 80e will send an amended insurance Schedule to the firm. The firm shall promptly send the amended Schedule to the policyholder and a copy to the opponent.”
Mrs Plevin's engagement of Miller Gardner
In terms of legal representation, Mrs Plevin engaged Miller Gardner to act on her behalf in respect of all of the proceedings referred to in paragraph 3 pursuant to a CFA. The only letter of engagement of Miller Gardner, dated 19 July 2018 and signed by Mrs Plevin on 20 July 2018 (“the LOE”), provided, amongst other things:
“3. Conditional Fee Agreement
In this case we are prepared to act on a conditional fee agreement which is enclosed in duplicate together with an explanatory information document which hopefully makes entirely clear the basis of our charges, both of which you should sign, but do not date, and please return to me in the enclosed freepost envelope.
…
4. Payment Terms
We ask you to provide us with standing instructions, that, as and when we feel it appropriate, we can issue the claim on your behalf and present it to the bank. We only ask you to forward now £15 (if not already done so) so we can apply for a list of charges. We shall not require any more monies whatsoever, other than sums which are payable from recoveries…”
However it should be pointed out that the LOE refers to a claim against Loan Line, the broker who recommended that she take out a loan with Paragon. It is the Claimant's case that no letter of engagement relating to the claim against Paragon was created and no one has produced such a letter. By Paragraph 2 of the Reply, the Claimant admits that the terms of the LOE apply to the claim against Paragon, but in her skeleton argument she raises doubt about this issue.
The CFA was signed by Mrs Plevin. The agreement date is said to be 19 June 2008 though there is no date next to her signature nor that on behalf of Miller Gardner. The material parts of the agreement were as follows:
“This agreement is a binding legal contract between you and your solicitor/s. Before you sign, please read everything carefully. This agreement must be read in conjunction with the document enclosed “What We Do Next”.
…
What is covered by this agreement
• Your claim against PARAGON PERSONAL FINANCE LIMITED for damages and refunds of unfair, unlawful or improper payments suffered as a result of your loan arrangements or payments for any insurance on related product with Banks or Institutions named above.
• Defending any claim brought against you whether directly or by way of counterclaim for payment of monies under a consumer credit agreement or other loan agreement.
• Any appeal by your opponent.
• Any appeal by you against an interim order.
• Any proceedings you take to enforce a judgment, order or agreement.
• Negotiations about and/or a court assessment of the costs of this claim.
What is not covered by this agreement
• Any counterclaim against you.
• Any appeal you make against the final judgment order. …
Paying us
If you win your claim, you pay our basic charges, our disbursements and a success fee. You may be entitled to seek recovery from your opponent of part or all of our basic charges, our disbursements, a success fee and insurance premium. “Win” for these purposes, means an agreement or Judgment in your favour and including provision for a costs order or award payable to you by your opponent. Win also includes relieving you of liability in whole or in part from any monies being claimed against you.
…
Work Covered
This agreement covers all work carried out from the date of your initial instructions notwithstanding that this date may well pre-date the date of this agreement and covers steps taken to seek leave to Appeal any final Judgment.
The Success Fee
The success fee is set at 100% of basic charges, where the claim concludes at trial…”
The document entitled “What We Do Next” (“WWDN”), attached to the CFA, provided amongst other things:
“What we do next
• Once you have signed and returned the terms of Business Letter, Conditional Fee Agreement And documentation in connection with money laundering requirements we shall continue with your case
…
Costs and our Conditional Fee Agreement (CFA) with you.
• As we have explained your liability for...
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