PAYING EXPERT’S FEES: INFORMING AN EXPERT THAT A HEARING IS CANCELLED AND – GETTING STRUCK OFF THE ROLL OF SOLICITORS …

September 16, 2019 · by · in Appeals, Applications, Costs, Expert evidence, Experts

The judgment in the case of   Clegg v Solicitors Regulation Authority [2019] EWHC 2408. A solicitor was struck off, in circumstances  that could easily have been avoided.   It required the simple step of informing an expert that a trial had settled.

THE CASE

The appellant was appealing from a decision of the Solicitors’ Disciplinary Tribunal that he be struck off.

THE CHRONOLOGY

The claimant was the sole owner and director of a  firm of solicitors.  The firm was instructed in a personal injury case.  The case settled. However the entire problem arose from the failure to inform an expert that the trial had been vacated.

    1. The claim proceeded. It became necessary to instruct experts in various medical disciplines. One such expert so instructed by the firm on behalf of Mrs LW was Professor JW, a distinguished oncologist. He was instructed in January 2013.
    2. By April 2014, PH had been given a trial window of 24 November 2014 to 7 February 2015 by the court. The length of the trial was estimated at 7 days. She requested from Professor JW his availability, by letter dated 16 April 2014. She also said that the trial was estimated to last 7 days “although you will not be required for all 7 days – I estimate 3 days”.
    3. Professor JW confirmed his availability for trial in that window by emailed letter sent to the firm the same day. In that letter he also said this:

“Please do note my conditions and terms for medico-legal work and in particular my cancellation fees. Should my cancellation fees be unacceptable to your firm please let me know within the next two weeks.“

    1. The appended conditions and terms among other things stated that Professor JW charged £1,500 per day for court appearances. Under the heading “Payment” this was stated:

“Thirty days from date of invoice. The instructing solicitors are responsible for the payment of fees and not the solicitors’ clients…”

Under the heading “Cancellation of conferences and Court appearances” this was said:

“All cancellations must be received in writing. If more than 4 weeks notice of cancellation is given, there is no cancellation fee. If 2 – 4 weeks notice of cancellation is given, then half my daily rate is charged. If less than 2 weeks cancellation notice is given, then I charge my full daily rate of £1500 per day.“

    1. On 23 April 2014, PH on behalf of the firm responded. She informed Professor JW that 12 – 20 January 2015 were mutually convenient dates for all parties for the trial. The letter concluded:

“I appreciate your terms and conditions and cancellation fee in this regard.”

    1. Professor JW responded by email on 24 April 2014, saying that he had entered those dates in his 2015 diary. PH in turn replied on 28 April 2014, noting that “you have entered the provisional trial date into your 2015 diary”. She concluded: “I appreciate your assistance.”
    2. There was in due course a meeting of experts. Although we were not given full details, it seems that a settlement figure for the clinical negligence claim was shortly thereafter agreed, in around August 2014, in the sum of £160,000, with £100,000 payable to Mrs LW’s son and £60,000 payable to Mrs LW herself. The defendant also agreed to pay costs, to be assessed if not agreed. That settlement was subsequently approved by the court in, as we were told, September 2014.
    3. For reasons which have never really been explained, Professor JW was not informed by PH that the claim had been settled and was not informed that, in consequence, the trial fixed for January 2015 would not now need to take place. I entirely accept that that was not the responsibility of the appellant personally at that time. But he did, nevertheless, at a later stage have responsibility for how things were thereafter presented to Mrs LW in the context of the costs issues that developed, as I explain below.
    4. At any rate, it seems that the first Professor JW heard of the cancellation of the trial was when shortly before trial (and for which he said he had been preparing) he had a telephone discussion with PH on 9 January 2015. She then told him that the case had settled and the trial was not going ahead. We have no note of that conversation in the papers before us.
    5. On 13 January 2015 Professor JW wrote to PH as follows:

“I would be grateful for the payment of my cancellation fee of £10,500.

You had asked that I make myself available for the Court from 12th – 16th, and 19th – 20th January 2015 inclusive. You informed me at 3:20p.m. on 9th January of the cancellation of the trial. You confirmed in an email dated 23rd April 2014 my terms and conditions and cancellation fee in this regard. Accordingly, I enclose a fee note in this matter.

Could you kindly note that my fee note for the conference with experts on 29th July 2014 remains unsettled, and that a further supplementary fee note is enclosed with this letter.”

    1. There was, it is to be gathered, no response. Professor JW then sent a detailed letter before claim to the firm on 13 February 2015. In it he said that he had cleared his diary for the trial, that he had prepared carefully for the trial and that he had only been informed of its cancellation on 9 January 2015. He suggested that “this is an open and shut case and you should not delay payment of my invoice in respect of the cancellation fees”. Those continued not to be paid. On 16 April 2015 Professor JW then issued proceedings in the County Court for payment of the sums which he said were due to him, including the cancellation fee of £10,500, representing 7 days at £1,500 per day. The sole defendant was named as “GMS Law”.
    2. After this, the appellant to an extent became involved. He drafted a Defence to the claim. The claim was denied in its entirety. A number of points (some, on any view, highly technical) were taken. But at the outset this was said at paragraphs 2 and 6:

“2. The Defendant avers that the correct Defendant should be [LW] – being the Claimant in the underlying Personal Injury action and as such being the person, and the only person, capable of being liable for Disbursements in respect of the Personal Injury Claim in which she was the Claimant under the Indemnity Principle.

…

6. Under the Indemnity Principle, a Solicitor cannot be liable for Disbursements, the liability must remain with the Client – [LW].”

Then at paragraph 10 of the Defence this was pleaded:

“10. It is denied that there was any agreement for the Claimant to attend Trial – the Claimant was not instructed to attend Trial. Indeed there was no Trial in the underlying Personal Injury claim.”

The Defence was signed by the appellant as a director of GMS Law. In a subsequent, more detailed, Defence dated 7 September 2015, again prepared and signed by the appellant, similar points (including reliance on the indemnity principle) were raised. But they also were supplemented. It was now further said there was no concluded contract with Professor JW at all and, moreover, that had there been a trial he would have attended trial only for 2 or 3 days, not the full 7 days to which the cancellation invoice related. It was also reiterated that Professor JW had not been “instructed” to attend trial. The position of the appellant before us in fact was that he suspected that Professor JW may deliberately have “sat back” pending the trial with a view to garnering a cancellation fee.
  1. It is common ground that at no stage (at this time) had Mrs LW been told by PH or anyone else of the existence of these proceedings, let alone been told that the firm, in its pleaded Defence, was saying that she herself was liable to Professor JW for the cancellation fee as claimed.
  2. On 28 January 2016 there was a trial of Professor JW’s proceedings in the County Court. The firm was represented by counsel (as was Professor JW). PH [the lawyer dealing with the matter on the claimant’s behalf] attended. She also gave evidence. The appellant did not himself attend.
  3. Deputy District Judge Wood found in favour of Professor JW. By his oral judgment given on that date he concluded that, on the correspondence, a contract had been concluded and had been concluded on Professor JW’s terms and conditions. Accordingly, since he had not been informed more than 2 weeks before trial that he was not required, he was entitled to his full cancellation fee. As the judgment records, PH had said in evidence that she accepted that Professor JW had been professionally obliged to keep the trial dates free. She had also said that she honestly believed that the firm had no obligation to pay him. But there was, as the judge held, in fact and in law such an obligation. Since Professor JW had duly kept the seven days free, he was – subject to any mitigation – entitled to 7 days at £1,500, that is to £10,500, as “damages”. Whether the sums were strictly payable as damages may be queried; but, speaking for myself, I find the overall conclusion as a matter of contract unsurprising. The actual amount payable was at all events then agreed to be £9,422, plus costs.
  4. The appellant was informed of the outcome. However, he did not receive the actual transcript of the judgment until June 2016. In that transcript the judge is among other things recorded as observing that it struck him as “extraordinary” that, the case having settled, Professor JW had not been told.

THE PROPOSED APPEAL

The case gets more unusual in that the appellant suggests to the original injured claimant that they appeal against the decision awarding the expert his fees.  In any event the claimant was paid damages and, as it turned out, the payment of the fee made no different to the eventual outcome to the injured claimant

“a subsequent complaint by Mrs LW to the Legal Ombudsman resulted in an adjudication in 2018 in favour of the firm on this point. Whilst it was found that payment to Professor JW should not have been made from client account, and whilst the firm had failed to take the correct action to avoid the cancellation fee being incurred, nevertheless that money would in any event have gone towards the shortfall in the firm’s fees and so Mrs LW would not have been entitled herself to receive that sum in any event. That position, I add, had by the time of the hearing before the Tribunal also been accepted by the SRA.”

THE RESULT

Mr Clegg was struck off the Tribunal. That decision was upheld by the Divisional Court.

FOR THE SAKE OF ONE LETTER OR PHONE CALL

All of this could have been avoided if the lawyer who had conduct of the case (who was not Mr Clegg) had simply informed the expert as soon as possible after the case had been settled.

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