SWITCHING FROM LEGAL AID TO CFA: THE SUCCESSFUL APPEAL

July 5, 2016 · by · in Appeals, Assessment of Costs, Conditional Fee Agreements, Costs, Uncategorized

The saga relating to the assessment of costs where a claimant changed from public funding to a conditional fee agreement has been dealt with many times on this blog*.  All of these issues are now dealt with in the judgment of Mr Justice Foskett in Surrey -v- Barnet and Chase Farm Hospitals NHS Trust. [2016] EWHC 1598 (QB)

“The principles and practice to be applied to this issue if it arises should, in my judgment, be informed by the need to ensure that detailed assessments of costs do not become an arena for a wide-ranging inquiry into the decision-making processes as between the claimant (usually, through his or her litigation friend) and his or her solicitors”

“If the issue falls to be determined at a detailed assessment hearing, the Costs Judge should endeavour to reach a decision based on the arguments raised in the points of dispute and replies without any need for further evidence. Evidence as to what the claimant may or may not have done had the advice been given will not be helpful, given that the question for the court is whether the decision was reasonable in the way set out in this judgment. It would only be in the most exceptional case, where there is some suggestion of impropriety, that any oral evidence from any party should be considered. The Costs Judge should give careful directions concerning the reception of such evidence if it should be necessary.”

KEY POINTS

  • The Court overturned decisions made on assessment that the claimants were not entitled to additional liabilities and insurance premiums because funding had changed from legal aid to a CFA.
  • The fact that there would be a 10% increase in general damages was, in the context of these cases, a minor issue.
  • The courts should endeavour to avoid calling witnesses at assessment hearings. Rather the matter should be resolved, if at all possible, without the need for evidence.

THE CASE

The court was considering three appeals. In each case the claimant had changed from public finding to a conditional fee agreement. On assessment the Master or District Judge had refused to allow the additional liabilities or insurance premiums. The claimants appealed.

THE JUDGMENT

  1. The decision whether these appeals should succeed or fail must, of course, be made by reference to the rules applicable at the time the relevant decisions concerning the change of funding occurred and by reference to such authoritative guidance as is available. I have already observed (see paragraphs 56 and 76 above) that the precise situation arising in these cases is unique, is not covered directly by any previous authority and, whilst other cases raising similar issues will doubtless emerge over the next few years, there will be a finite number of cases in which those issues will arise. I will turn to the application of the principles in practice in this context below, but the first issue is whether on a review (which each of these appeals constitutes) I am entitled to intervene at all.
  2. For reasons which will emerge more fully below, I do consider, with respect, that each Costs Judge placed too much weight on the suggested analogy with the informed consent issue in the context of medical treatment (see paragraph 49-55 above). Mr Williams is, in my view, right to say that, in the first place, it over-complicates the issue which, putting it shortly, is simply whether the additional liabilities were reasonably or unreasonably incurred. That question is to be determined by the application of the test in Wraith as explained (to the extent that it needed explanation) in Solutia UK Limited v Griffiths (see paragraph 60 above). That test is, in my view, wholly objective, but applied in the context of the individual circumstances of the particular claimant. In LXM, Master Gordon-Saker articulated the test (at [65]) by saying that the question was as follows: “Was the CFA and the attendant ATE policy a reasonable choice for the claimant at that time, having regard to all the circumstances?” It goes without saying, of course, that “all the circumstances” are those that apply to the individual claimant. Expressed in that way, the focus is not, as Mr Hutton suggested was the effect of Mr Williams’ argument, namely, that if there was any reasonable person who might have agreed to the change, that was sufficient, but upon what a reasonable person standing in the shoes of the individual claimant would do.
  3. That test, properly applied, would enable a costs judge to decide whether, in a particular case, the failure to mention the 10% uplift would be likely to have made any difference to the decision to transfer from legal aid to a CFA without any direct evidence from the claimant or the litigation friend. I will return to this below, but I regard the reference to Montgomery as a distraction in this context. I agree that some kind of analogy could be constructed, but there is, in my view, a world of difference between someone being asked to decide on whether to embark on a course of treatment or to approach a particular medical condition in a particular way having been told that there is a percentage chance of an adverse outcome and someone being asked if they are prepared to sacrifice a very small percentage of an overall substantial award of damages for the actual or perceived benefits of transferring to a CFA. Whilst Mr Williams has, in my view rightly, accepted that the 10% issue has to be seen as something that ought to have been mentioned to each of the litigation friends, the failure to do so should, save in very exceptional cases, be a matter for discussion and consideration between the claimant and/or his litigation friend and the solicitors: it is not a matter that should be of concern to the paying party. As I shall indicate below, where the issue does come into the arena in a costs assessment exercise if it ever does, in all but the most exceptional cases I consider that the court can decide if the failure to mention the 10% uplift would have made any difference by applying the Wraith test.
  4. It seems to me, therefore, that the focus of the decision of each Costs Judge was wrongly narrowed by reference to the analogy with Montgomeryand, that being so, I am entitled to look afresh at the issue.
  5. There are one or two further preliminary considerations that illuminate how this issue should be seen. First, I cannot, for my part, see why there could have been any complaint on the part of the defendants in these cases if each claimant had signed up to a CFA-Lite from the outset. If that is correct, why, one asks rhetorically, should changing to a CFA-Lite at some stage down the line be any different? Second, and allied to that first point, is this consideration: the government decided to alter the recoverability arrangements and this was heralded well in advance of 1 April 2013. If Parliament had wanted to prevent solicitors “taking advantage” of the old system before the new system came into operation on that date, it could have included some kind of “anti-avoidance” provision in LASPO. It did not do so. Third, and again allied to those two points, Mr Hutton contended that these appeals had been brought “in the financial interests of Irwin Mitchell (and possibly the ATE insurer) alone, and the claimants have no interest at stake in it.” I did question this assertion and Mr Hutton said expressly that he was not suggesting that was anything illegitimate or “money grabbing” about what occurred. He accepted that the pre-1 April 2013 system was designed to reward solicitors in cases where the success fees were payable for those cases where costs were not recovered, but suggested, as I understood him, that the timing of the transfer to a CFA in each of these cases meant that this was not the motive. As to that, he may be right, but for my part I do not see why that could not have been the motive and, if it was, that there was anything wrong about it. If the solicitor was “playing the system” within the prevailing rules, I have difficulty in understanding why there was anything wrong about it such that complaint could be made at the costs assessment stage.
  6. The principles and practice to be applied to this issue if it arises should, in my judgment, be informed by the need to ensure that detailed assessments of costs do not become an arena for a wide-ranging inquiry into the decision-making processes as between the claimant (usually, through his or her litigation friend) and his or her solicitors. Inevitably, any such inquiry would involve a number of logistical problems, one being the privilege accorded to communications between a litigant and the litigant’s legal adviser. There was a distinctly unhappy period in the early stages of CFAs during which defendants sought to challenge (and indeed in some cases did so successfully) the validity of the CFAs entered into by reference to the adequacy of the advice received prior to the entry by the claimant into the relevant CFA. It is worth recalling it briefly.
  7. The Conditional Fee Agreement Regulations 2000 imposed obligations on solicitors to inform clients of certain matters before entering into a CFA. A material breach of the regulations rendered the agreement unenforceable: see Hollins v Russell [2003] EWCA Civ 718. On detailed assessment paying parties would seek to establish that the solicitors for the receiving party had failed to comply with the regulations, that the CFA was thereby unenforceable and that the receiving party, not being liable to pay his own solicitor’s costs, could not recover them from the paying party. This was part of the “costs war” described by Sir Rupert Jackson in section 5(iv) of Chapter 3 of his Preliminary Report.
  8. The issue of whether the solicitors had complied with the regulations became the subject of witness statements produced for the detailed assessment hearing. Statements would be produced from the solicitor and also from the lay client. This could include the widows of deceased husbands and the parents of severely disabled children. Master Gordon-Saker has advised me that there were occasions he recalls when paying parties required such witnesses to attend to be cross-examined. An example from his own experience was Puksis v Brumby [2008] EWHC 90095 (Costs) in which the defendant required the mother and litigation friend of a claimant who had suffered severe head injuries in a road accident to attend court to be cross-examined about the inquiries that the claimant’s solicitor had made as to the existence of other means of funding the claim. In an intervention during the hearing of these appeals, Master Gordon-Saker characterised the period prior to the Conditional Fee Agreements (Revocation) Regulations 2005, which stopped this type of challenge for CFAs concluded after 1 November 2005, as “the bad old days”.
  9. Without sacrificing entirely the possibility of a proper challenge to a changed funding arrangement that is demonstrably improper or seriously prejudicial to a defendant for no good reason, any return to such days must be resisted strongly. Master Rowley said in Surrey (see paragraph 51 above) that the absence of any evidence from the Litigation Friend in relation to the 10% uplift “speaks volumes”. I do not, of course, possess anything like his experience in these matters and, accordingly, I differ from his view with considerable diffidence. However, I would be inclined to be less robust in my attitude to this particular omission. The claimant’s litigation friend was his mother (and thus the mother of a severely disabled child) who would doubtless have been relieved that the claim for her son had been resolved satisfactorily when the settlement was finally approved by the court. She will have walked away from that hearing thinking that she could forget the litigation and get on with the life that she and the rest of her family had to contemplate. The putting forward of any statement by her in relation to this issue may have led to a request that she should give evidence at the costs hearing. If that occurred it really would be a return to the “bad old days” and one wonders what truly useful evidence on the issue in question she could possibly have given.
  10. Detailed assessment hearings should, in my judgment, be kept as simple and straightforward as possible so that the Costs Judge can focus upon and deal with (robustly if necessary) the real issues concerning the costs sought that traditionally arise. It must, in my view, be a wholly exceptional case where, for example, the litigation friend of the kind I have identified should ever be required to attend to relive one decision made in the litigation that probably did not seem a particularly difficult or important one at the time. Mr Hutton has emphasised that the NHSLA would not seek to put anyone in this position unless it felt it was truly necessary to do so. I accept that unreservedly. The NHSLA has a difficult path to steer between defending robustly allegations of negligence that are unfounded, or at least properly defensible, and simply “giving in” to such allegations when made. Equally, when responding to the quantum element of a claim once liability and causation have been conceded or established, it plainly has a duty on behalf of the public purse to ensure that claimants do not receive more than the entitlement for which the law provides, but equally it needs to deal sensitively with claims made by families whose lives have been changed forever by (often) some relatively short-lived negligence. History shows that where concessions concerning liability and causation are necessary, the NHSLA does indeed make such concessions on behalf of those it represents (where appropriate, at an early stage) and suitable apologies are offered. This is plainly a responsible approach. In relation to damages, the availability of periodical payments orders has made it easier in many cases for appropriate settlements to be achieved satisfying both sides and the NHSLA has shown itself willing to engage constructively when discussing the disposition of a damages award. I am sure it is the case that the majority of claims are settled following roundtable meetings and this reflects a responsible and responsive attitude on both sides. As I say, I have no doubt that the NHSLA would not pursue the kind of hearing to which I have referred above if it was of the view that it was not properly necessary.
  11. However, whether such a hearing is appropriate cannot be left to one party alone: the court must plainly retain control over the way in which detailed assessment hearings are conducted and whether such a hearing as that foreshadowed above is necessary must ultimately be a decision for the court. I will say a little below (see paragraph 110) about the practice I suggest is followed in these cases henceforth having received the advice of Master Gordon-Saker.
  12. So where do these considerations and established authority lead? If this issue arises, in my view, a Costs Judge is perfectly entitled, possibly using his or her experience of other cases or their experience from days in practice, to ask and, in most cases, answer the question of whether the omission to refer to the 10% uplift would have made any difference to a reasonable claimant or his litigation friend in the circumstances prevailing in that case without receiving evidence on the issue. However, this question should be seen from the perspective of asking whether a reasonable claimant or reasonable litigation friend, in the circumstances prevailing in the case, would see the possibility of obtaining X +10% of X rather than X in the context of the overall global settlement as a matter that would prevent the change to a CFA. In Surrey, taking £19,000 as the value of the 10% uplift and the capitalised value of the settlement as £7,165,255, the question is whether a reasonable claimant or litigation friend in that situation would hold out for obtaining an increase of 0.026% of that sum rather than to have the uncertainty of the possible effect of the statutory charge, the possible effect of Part 36 offer and possible delays that might be overcome by being answerable to an insurer rather than the LSC. Whilst it would be possible to try to quantify those matters, the reality is that a solicitor would almost certainly put them forward in a broad way and invite the claimant or the litigation friend to approach the issue accordingly.
  13. When looked at in that way, I do not believe that any reasonable claimant or litigation friend would hold out for such a marginal improvement on the overall settlement. In Yesil the percentage increase would be just under 0.4% (taking £24,000 as the 10% uplift). In AH it would be somewhat higher at 5%. However, that case was, as I have said, extremely tragic and I cannot believe that the claimant’s litigation friend would have wanted anything other than a quick and simple resolution and would not have seen an additional £17,500 as worth pursuing.
  14. I say all this from the perspective of having seen in my full-time judicial capacity over the last nine years many Opinions from Leading and Junior Counsel across the country advising on the acceptability of a proposed settlement in this kind of litigation. I bring to bear also my own experience as a practitioner when I represented both sides in clinical negligence litigation. The Opinions that I have seen are invariably very detailed and often descend to quite closely calculated arithmetic. However, at the end of the day, there are many elements of the claim (including the damages for pain, suffering and loss of amenity) where a broad brush discount is applied to reflect the risks of litigation. This is a wholly familiar feature of these cases for those who practise in the field. No reasonable litigation friend would, in my view, hold out for the kind of figures in the kind of circumstances arising in each of the three cases under appeal even if only told of the general advantages of moving to a CFA. Approached in this relative way, rather than looking at the absolute figure involved, is, in my judgment, more likely to lead to a common sense result which in the vast majority of cases would be that the failure to mention the 10% uplift would have made no difference applying the Wraith test.
  15. Applying that approach to each of the three cases the subject of these appeals, I would respectfully differ from the conclusion reached by each of the Costs Judges and would restore in principle the additional liabilities they disallowed. I will deal with the subsidiary issue concerning the ATE premiums below (see paragraph 111-120).
  16. I have, of course, focused on what, in my view, will be a tolerably easy decision for a Costs Judge in the vast majority of cases if told that the 10% uplift issue is a “live” issue. There may be a small residue where the decision is not so clear or where there is a suggestion of some impropriety in relation to a switch from Legal Aid to a CFA. It is difficult to see what they might involve, but any system must provide for a way in which they are to be identified and resolved. Under the practice proposed below, that possibility is preserved.
The practice in future
  1. The procedural framework for the way in which what I have termed the “Simmons v Castle 10% issue” should be dealt with in future is summarised as follows:
(i) In any case in which the claimant changed funding from Legal Aid to a CFA in the period from 26 July 2012 (the date of the first judgment in Simmons v Castle) to 1 April 2013, the claimant’s solicitors should state in the narrative to the bill whether or not before the CFA was entered into the claimant or his/her Litigation Friend was advised of the 10% uplift. The solicitor’s certificate that the bill is accurate will apply to that statement.
(ii) The court will go behind that certificate only if there is a genuine issue as to whether what is stated is accurate. In the event that there is a genuine issue, that should be raised in the points of dispute and the reasons for the issue explained clearly. If the court accepts that a genuine issue has been raised, the question of whether or not advice was given should be resolved at the detailed assessment hearing either by production of the claimant’s solicitor’s attendance note of the advice or by a short witness statement from the claimant’s solicitor. It should never be necessary to adduce evidence from the claimant or the litigation friend. Furthermore, it is difficult to anticipate any circumstances in which it would be helpful for the claimant’s solicitor to be required to attend for cross-examination.
(iii) If in a case where the advice was not given the defendant wishes to argue that the change from legal aid to a CFA was unreasonable, that argument must be raised in the points of dispute. In the event that the argument is pursued, the claimant’s solicitor should indicate the actual or presumed value of the 10% uplift in the replies together with any reasons relied on as to why the change was reasonable. To the extent that it may not be apparent from other material, the claimant’s solicitor should also indicate the capitalised value of the agreed award or of the award of the court following a contested hearing.
(iv) If the issue falls to be determined at a detailed assessment hearing, the Costs Judge should endeavour to reach a decision based on the arguments raised in the points of dispute and replies without any need for further evidence. Evidence as to what the claimant may or may not have done had the advice been given will not be helpful, given that the question for the court is whether the decision was reasonable in the way set out in this judgment. It would only be in the most exceptional case, where there is some suggestion of impropriety, that any oral evidence from any party should be considered. The Costs Judge should give careful directions concerning the reception of such evidence if it should be necessary.
The ATE premiums in Surrey and AH
  1. In Surrey and AH the Costs Judge said that if the ATE premium had been allowed as recoverable in principle, he would have made a reduction in its amount. In Surrey, the reduction proposed was from £50,681 to £31,800; in AH it was from £18,881.78 to £15,000.
  2. The insurance policy was the same in each case and was a block-rated policy – in other words, a policy used in a wide variety of claims and with generic indemnity limits. The policy is self-insuring. It was effectively an “off the shelf” policy used by Irwin Mitchell in many cases. It provided cover of £500,000 in respect of the legal costs of the other side and the disbursements on the claimant’s side. The policy excluded cover for “[any] disbursements or opponent’s legal costs relating to legal work not within the scope of your CFA.” It follows that it would not cover any opponent’s costs incurred in the period before the date of the CFA when the claimant would have costs protection afforded by the Legal Aid certificate. The premiums are staged: Stage 1 relates to the pre-issue period. This is not relevant to these cases because it had expired before the policies were purchased. Thereafter the Stage 2 premium is £17,813 plus tax of £1,068.78 (total £18,881.78) if the claim is won after proceedings are issued and before 90 days before the trial/trial window. Stage 3 applies if the case is won within the period after 90 days before trial/trial window. The premium for this stage is £47,813 plus tax of £2,868.78 (total £50,681.78).
  3. The background to this issue (including the relevant authorities) can be seen from the judgment of Master Rowley in Surrey. He said this:
“103. The claimant purchased a LitigATE policy underwritten by Allianz and for which Irwin Mitchell have delegated authority. It is a block rated policy and so needs to cater for cases which have barely started as well as cases such as this one, where liability has been conceded and the risks have reduced.
104. Mr Hutton sought to persuade me that I should not take Rogers v Merthyr Tydfil County Borough Council [2006] EWCA Civ 1134as a bar to considering the reasonableness of the premium. Mr Hutton relied on the decision of HHJ Holman sitting in the Manchester county court in the case of Beasley v St Thomas’s Priory Golf Club (21 August 2008). It is one example of cases where the judiciary have felt themselves able to take a different view from the underwriter notwithstanding the exhortations of the Court of Appeal inRogers (quoting Lord Hoffman in Callery v Gray [2002] UKHL 28) that costs judges should be cautious about taking any contrary view, other than in broad terms.
105. I have no doubt that I can take a contrary view to the underwriter if the risk assessment or the level of cover has manifestly resulted in an overly high premium being claimed. But Rogers is very clear authority that the court should be slow to adjust block rate premiums in particular. There are inevitably swings and roundabouts with such premiums and it is not appropriate in my view to be trying to deconstruct the premium here in the way that Mr Hutton sought to persuade me to do.
106. The only aspect which demands some scrutiny is the level of cover which is £500,000. That is considerably higher than the usual block policy in my experience. It also provides, in my view, considerably more cover than can be required in the great majority of cases. It is well known that the higher levels of cover cost little in terms of premium compared with the cover at the bottom since the higher levels are rarely called upon. It is also well known that one of the purposes of setting a higher level of cover than would be needed in most cases under a delegated scheme is in order to make it administratively simpler.
107. I was referred to the case of Finney v Secretary of State for Health, a case heard on 4 February 2015 in the County Court at Hull by District Judge Besford who is a regional costs judge. DJ Besford was persuaded that the level of cover was appropriate. However, he interpreted the wording of the policy to mean that only a stage 3 premium was payable which was £31,800 rather than the £50,681.78 claimed.
108. The circumstances of this case and the case of Finney are identical in that the policy was taken out after liability had been concluded. I do not consider that the policy wording deals with this situation. The description of the start date, in my view, only contemplates a policy being taken out at the beginning of the claim. I regret to say that I do not entirely follow why DJ Besford considered that the policy leapt straight into stage 3, nor that the premium for the earlier stages was not also recoverable.
109. Be that as it may, it does seem to me that the premium allowed by DJ Besford would be a reasonable and proportionate sum to allow in this case. I do not think that it was reasonable to take out a level of cover more than around £250,000 on a block rated basis. Higher levels of cover will be required by so few cases that to include such cover in every policy is not a reasonable cost in my judgment. Very few firms have delegated authority schemes above £100,000 and £250,000 is about the maximum of the policies that I have seen.”
  1. In AH the Costs Judge said this on this issue:
“83. The premium is claimed at £18,881.78, block rated. Stage two of three stages was reached. Mr Hutton argues that that figure is too high given that it produced a level of indemnity of £500,000 in circumstances were, for part of the claim, the claimant had costs protection under legal aid. He draws attention to the allowance by Master Rowley in Surrey, where the court decided that cover of around £250,000 on the block rated basis was appropriate. On a broad brush approach, Mr Hutton submits that £12,000 would be reasonable for the premium.
84. Mr Marven emphasises that stage 2 had been reached and that, with the expectation of a trial lasting 5 to 7 days, and several experts on both sides, the level of indemnity was realistic. Moreover, in Surrey, stage 3 had been reached, which is not position here. Finally, Mr Marven draws my attention to the authorities that the onus is on the paying party to produce evidence as to the unreasonableness of the premium (Kris Motor Spares Ltd v Fox Williams [2010] 4 Costs LR 620) and the court should be slow to adjust block rate premiums (Rogers v Merthyr Tydfil County Borough Council [2007] 1 Costs LR 77).
85. I agree with Mr Marven that when the premium is challenged, the paying party must produce material to support any attack on its level. Here there is none. That said, given the fact that the claimant had legal aid protection for the costs for part of the case, I consider there should be reduction to reflect this and also for the fact that at £500,000, the level of indemnity was too high. I would allow £15,000.”
  1. Mr Williams submits that I should not be influenced by these views and should allow the premiums in full. There was, he submits, no evidence by virtue of which the Costs Judges could make an assessment of any reduction in the premium and relies upon the approach of the Court of Appeal inRogers v Merthyr Tydfil CBC [2007] 1 WLR 808 (followed by Simon J, as he then was, in Kris Motor Spares Limited v Fox Williams LLP [2010] 4 Costs LR 620). I will set out that approach as it appears in Rogers at [117]:
“If an issue arises about the size of a second or third stage premium, it will ordinarily be sufficient for a claimant’s solicitor to write a brief note for the purposes of the costs assessment explaining how he came to choose the particular ATE product for his client, and the basis on which the premium is rated-whether block rated or individually rated. District judges and costs judges do not, as Lord Hoffmann observed in Callery v Gray (Nos 1 and 2) [2002] 1 WLR 2000, para 44, have the expertise to judge the reasonableness of a premium except in very broad brush terms, and the viability of the ATE market will be imperilled if they regard themselves (without the assistance of expert evidence) as better qualified than the underwriter to rate the financial risk the insurer faces. Although the claimant very often does not have to pay the premium himself, this does not mean that there are no competitive or other pressures at all in the market. As the evidence before this court shows, it is not in an insurer’s interest to fix a premium at a level which will attract frequent challenges.”
  1. This guidance was, of course, itself given in 2006 and was based upon the observations of Lord Hoffmann in Callery v Gray given in 2002 when the new arrangements concerning CFAs were in their relative infancy. That does not diminish the importance of the guidance, but it must be recalled that there is now some 10 years of experience gained by Costs Judges since Rogers. Neither Callery v Gray nor Rogers expressly holds that an adjustment of a premium by Costs Judge should not be made on a broad brush basis, but each, in effect, urges caution in doing so.
  2. There are two reported instances where the broad brush has been applied in this context: Redwing Construction v Wishart [2011] 2 Costs LO 212, a decision of Akenhead J in the TCC and Kelly v Black Horse Ltd (27 September 2013), a decision of the then Senior Costs Judge, Master Hurst. I am particularly influenced by the fact that Master Hurst, whose experience in this field is unrivalled, should have felt entitled to intervene in this way.
  3. Plainly, the application of any broad brush must not be a capricious exercise, but the experience gained by Costs Judges over the years must, if they are to retain the ability to engage in a robust analysis of competing arguments at costs assessment hearings, be permitted to enter the arena. It follows that, in my judgment, each of the Costs Judges would have been entitled to intervene by reducing the amounts recovered in respect of the ATE premium.
  4. The basis of the approach of Master Rowley in Surrey is clear from the quotation from his judgment set out above: he considered that cover for £500,000 in the circumstances was disproportionate. I agree. The claimant would have had costs protection until 15 March 2013 after which he no longer had Legal Aid. Cover under the policy commenced on 22 March 2013, liability having not been in dispute for 3 years. The trial window for the assessment of damages was between June and November 2013. What was claimed was the Stage 3 premium, but the cover was for a short period and the only real risk was a failure to beat a Part 36 offer. There was ample scope for an adjustment and Master Rowley used his own experience and that offered in the case of Finney to arrive at what he considered an appropriate recovery. I would not interfere with that assessment.
  5. In AH, again the Costs Judge felt that cover of £500,000 was too much and made the reduction to £15,000 for this reason. In that case the claimant had costs protection under the Legal Aid Certificate until 1 March 2013 and cover under the policy commenced on 27 March 2013. Settlement was not achieved until December 2013 and there had been no concession on the issue of causation. The case had not been listed for trial. On that basis it is arguable that there was less justification for intervention than in Surrey, but it would not be right for me to interfere simply because others might have reached a different conclusion. The decision was made by an experienced Costs Judge who will have a much better “feel” for this matters than a judge who deals with this kind of issue intermittently. This is an approach reflected in the judgment of Buckley J in Mealing McLeod v Common Professional Examination Board quoted at paragraph 47.21.1 of Volume 1 of the White Book. It follows that I would not interfere with the assessment of the Costs Judge.
Conclusion
  1. The appeals will, accordingly, be allowed in each case save that the sums allowed by way of recovery in respect of the ATE premiums in Surrey andAH will be in the sums the respective Costs Judges said they would have allowed had recovery in principle been permitted.

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