MISCONDUCT ON ASSESSMENT LEADS TO COSTS BEING HALVED: IMPORTANT DECISION ON SOLICITOR’S DUTIES & DELEGATION OF ASSESSMENT PROCESS

I am grateful to Dominic Regan* for sending me a copy of the Court of Appeal decision today in Gempride Ltd -v Bamrhah [2018] EWCA Civ 1367. A case that concerns misconduct on assessment. (This is a preliminary post on the case. I will provide a full post and link to the case later today.)

*Matthew Hoe also brought my attention to this case

THE CASE

The claimant issued detailed assessment proceedings after a successful personal injury case. The claimant’s solicitor was also the claimant,  At the assessment Master Leonard (sitting as s Deputy District Judge) disallowed the claimant’s costs in full because of the solicitor’s conduct during the assessment process.

THE APPEAL TO THE CIRCUIT JUDGE

The claimant appealed and the appeal was allowed by the Circuit Judge sitting with an assessor. The appeal was allowed because the claimant was hold not to be responsible for the acts and omissions of the costs firm that had made mistakes which were not attributable to the claimant. The hearing took 13 days with the claimant giving evidence.  The appeal was dismissed with indemnity costs of the appeal and below. (The claimant’s costs now stood at some £950,000). The Circuit Judge also ordered the defendant to pay the claimant’s costs of attending appeal – where she had given evidence.

THE DEFENDANT’S SUCCESS IN THE COURT OF APPEAL

The defendants were successful in the appeal and the claimant’s costs were reduced by 50% because of the claimant’s conduct on assessment.

  • The cost lawyers acted as agents for the claimant.  The judgment contains important elements of principle – solicitors who instruct cost lawyers and others “remain ultimately responsible for the acts and omissions of those to whom they delegate parts of the conduct of litigation, particularly when those to whom such work is delegated are not authorised.”
  • The claimant’s conduct in attempting to claim hourly rates that were not recoverable was not found to be dishonest. However it was “unreasonable or improper” to a level that could justify sanction.
  • The fact that the claimant was a solicitor did not entitle her to claim the costs of her attendance.