THE TIME FOR CHALLENGING A BILL HAS PROBABLY LONG GONE: AN IMPORTANT FACTOR IN REFUSING AN APPLICATION FOR DELIVERY UP
There is a battle (or a series of skirmishes) going on at present in relation to solicitors charging success fees to their clients in personal injury cases. This has led to numerous applications to the courts for disclosure. The former client seeks disclosure of documents they have already have. The judgment of Master Leonard in Riaz v Ashwood Solicitors Ltd [2018] EWHC B5 (Costs) is another example of the skirmishing. The fact that the time for challenging bills had probably expired was an important factor.
“It is important to put this application into context. One must bear in mind the criteria for pre-action disclosure set out by CPR 31.16, which this case does not meet. One must also bear in mind the stated purpose of the application, which is to allow the Claimant to take advice on the exercise of his statutory right to apply for assessment of the Defendant’s bills. Those rights are subject to time limits. Given that, on the evidence, the Claimant received bills and paid them about three years before he instructed his present solicitors to explore the possibility that he had been overcharged, it seems likely that those time limits expired some years ago.”
THE CASE
The claimant had instructed the defendant solicitors in relation to a personal injury case in 2013. The case was settled and a 25% success fee deducted from the claimant’s damages by the defendant, in accordance with the terms of a conditional fee agreement. The claimant now sought delivery up of documents from the defendant. The application was refused by the Master. Amongst other things the Master considered the application to be redundant given that the time for challenging the bill had long passed.
THE MASTER’S ASSESSMENT OF THE EVIDENCE
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As regards the parties’ dealings generally, I prefer the evidence of Mr Kasim to the evidence proffered by Mr Green on behalf the Claimant.
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The Claimant himself gives no evidence. I have onIt seems inconsistent in saying that the Claimant has retained no correspondence sent to him by the Defendant, whilst relying for details of the settlement of the Claimant’s claim on key correspondence said to have been dated 24 April 2014.ly Mr Green’s evidence as offered on his behalf.
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Mr Kasim’s evidence as to the original claim would appear to have been prepared by reference to available file records. The Claimant has not responded to his detailed account of the parties’ dealings and of the records supplied by the Defendant to the Claimant’s current solicitors: if that account were inaccurate, no doubt the Claimant would have challenged it.
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Mr Kasim’s evidence is not without its weaknesses. His evidence as to invoicing is rather vague. I appreciate that exhibiting copies of the relevant invoices to his statement might be seen, in effect, as submitting to the Claimant’s application, but it would have been helpful to know exactly how many invoices were sent to the Claimant, and when.
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Mr Kasim’s broad references to a CFA that provides for a success fee of 25% of general damages are not helpful to the Defendant. The amount of the success fee must be limited, in cases such as the Claimant’s, to a maximum of 25% of specified categories of damages: it does not follow that a solicitor is entitled to the full 25%. I appreciate that Mr Kasim may simply be saying that that was the amount of the success fee properly payable to the Defendant.
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In any event, Mr Kasim’s evidence overall appears to me to be more reliable than that of the Claimant. I am unable, in the face of Mr Kasim’s evidence to the contrary and where the Claimant has retained none of the correspondence sent to him by the Defendant, to accept the Claimant’s assertion that he received no bills from the Defendant. Notably the Claimant does not suggest that he did not receive a copy of his CFA and any other relevant retainer or funding documentation.
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In summary, on the evidence the Claimant has, since the completion of the retainer in 2014, been in a position to know how much he received by way of damages, and to know how much he paid to the Defendant. If he cannot now accurately recall the position it would be because he has not kept, or has not checked, any relevant records.
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It would also seem that that of the five categories of documents sought by the Claimant, two are redundant. There are no ATE records to supply, and copies of correspondence in relation to recovery of the Defendant’s legal fees through the Portal process were supplied before this application was issued. That leaves three categories; copies of invoices and copies of funding documentation (which, on the weight of the evidence, were delivered to the Claimant in the normal way in the course of the retainer); and copies of correspondence passing between the Defendant and the Claimant.
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Green & Ors v SGI Legal LLP
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In Green & Ors v SGI Legal LLP [2017] EWHC B27 (Costs) I considered and rejected a similar application, made by the same solicitors on behalf of other claimants, for delivery (in return for payment of copying costs) of documents which belonged to the solicitor rather than to the client. Mr Carlisle for the Claimant did not pursue before me the arguments considered and rejected by me in Green & Ors, but I fully understand that the Claimant has not abandoned those arguments. Mr Carlisle, very properly, did not wish to waste the court’s and the parties’ time going over the same ground. This judgment should, then, be read as if the arguments considered by me in Green & Ors had been put to me in this case, and rejected for the same reasons.
TIME
Finally the Master noted that the time for challenging the bill had long passed.