IF YOU CAN'T PROVE YOU HAVE A PROPER RETAINER YOU WON'T GET PAID: SHIPPING IN FROM HULL
In Scott -v- Hull & East Yorkshire Hospitals NHS Trust  Ew Misc B53(CC) the claimant failed to recover any costs against the defendant because he failed to prove that there was a valid CFA.
A detailed assessment was adjourned when it became clear that the claimant had entered into two CFAs.
- The receiving party (Rapid Response Solicitors) were put to their election to either disclose the CFAS and primary documents or rely upon secondary documents to show an entitlement to the success fee and notice of retainer.
- The judge was hearing a preliminary issue.
HISTORY OF THE ASSESSMENT
The original bill that was lodged was £112,000, based on £400 an hour and 100% uplift. Shortly before the assessment this was revised to £36,000 with a reduction to £146 an hour and a reduction of the uplift to 54%.
- At the assessment it came to light that Rapid and the client had entered into two separate CFAs.
- The preamble to the bill and replies to points of dispute had, incorrectly, asserted that there was one CFA. A “discounted” CFA had been entered into on the 12th NOvember 2012.
THE DECISION NOT TO DISCLOSE THE CFAS
Rapid chose not to disclose the CFAs but relied upon a statement of truth from an employee who also gave oral evidence and was cross-examined.
THE ABSENCE OF FIRST HAND EVIDENCE
However the person who gave that the statement:
- Was not one of the fee earners involved with the file.
- Was not involved with either of the CFAs.
- had come into the action late in the day.
- Could not (correctly) give the date that enquiries were made of BTE insurers.
- Could not confirm the extent of the CFAs, that is whether they related to the hospital and/or individual doctors.
The judge was critical of the information provided. Rapid had been put to their election and had not provided anything like the particularity normally seen.
THE POSITION OF THE COURT
On an assessment on a standard basis any doubts had to be resolved in favour of the paying party.
- Rapid had exercised its discretion not to disclose the CFas.
- The judge was not satisfied that the signature on the bill could be relied upon. The original bill was £112,000 and that bill withdrawn and replaced with a substantially reduced bill.
- The original bill was incorrectly charged at £400 an hour and was clearly miscertified.
- The hourly rate had been rectified due to the points of objection and not acceptance that the original rate breached the indemnity principle.
- The second bill and certificate did not give the judge confidence.
- Neither did the judge have confidence in the evidence given by a fee earner who had not been involved in the case until the costs issue and who had given incorrect dates in relation to the BTE enquiries.
- Further the fee earner was unable to state, with certainty, the identity of the parties in each CFA.
- Further loss of confidence occurred because earlier replies had asserted that there was only one reply, which was incorrect.
“17. There have been a number of flaws throughout this assessment both on the paperwork, the
replies, the statement of Mr Thompson, and the oral evidence heard today. On that basis I
have to say that I have a significant doubt over the position of the CFAs and retainer in this
particular claim. Where there is a doubt I must exercise such doubt in favour of the paying
party. In the circumstances I cannot be satisfied that there are valid retainers between Rapid
and Mr Scott. To that extent, the claim for costs against the defendant has to be struck out. If
there is no valid retainer, there is no right to recover costs from Mr Scott other than, and I
will wait for the advocates to correct me if I am wrong, disbursements that have been
incurred and have been paid prior to the assessment proceedings”
NOTE THE TACTICAL DECISIONS
This case highlights, among other things, the need for first hand evidence to be available to the court. The CFA is, without doubt, the best first hand evidence there is. “Evidence” from a fee earner with no involvement in the substantive case is unlikely to impress. As seen in this case the evidence could simply not be accepted.