DEFENDANT SOLICITOR IN COSTS ASSESSMENT NEED NOT RESPOND TO PART 18 REQUESTS ABOUT PREMIUMS: “THE GENERAL QUESTIONS POSED ARE A PARADIGM EXAMPLE OF A FISHING EXPEDITION”

I am grateful to Nick McDonell  from Kain Knight for sending me a copy of the judgment of Costs Judge Rowley in Brown -v- JMW Solicitors LLP [2022] 2848 (SCCO).  In that case the judge refused to make an order compelling the defendant solicitors to answer questions in relation to after the event insurance premiums paid on the claimant’s behalf.  A copy of the judgment is available here. Judgment Brown v JMW Solicitors [2022] EWHC 2848 (SCCO)

 

“in my judgment it would be inappropriate to require the defendant to answer generic Part 18 questions. In the absence of any stated suspicion, let alone any evidence to support it, the general questions posed are a paradigm example of a fishing expedition.”

THE CASE

This was a solicitor and own client assessment.  The defendant had represented the claimant in personal injury proceedings. The claimant then sought an assessment of the costs he was to pay to the defendant.   A policy costing  £644 had been taken out, on the claimant’s behalf.

THE PART 18 REQUESTS

The Part 18 requests related to the relationship between the defendant and the insurer.  The claimant, effectively, trying to tease out whether any commission had been paid.  The defendant refused to answer.  The claimant made an application that the defendant respond. Neither party put any evidence before the judge at the application.

THE JUDGE’S DECISION: THE PART 18 REQUESTS NEED NOT BE ANSWERED

The judge found that it was not appropriate to order the defendant to respond.

30. I have come to the conclusion that Mr Dunn’s arguments, though persuasively put, must
be rejected. It is a basic tenet of litigation that he who asserts must prove. In the situation
before me, the claimant’s position is that he does not even need to assert let alone prove
a commission may be in issue. He simply has to say that the premium is disputed
without putting forward any grounds for doing so. Mr Dunne described the claimant as
being trapped in a Catch-22 situation. He needed information from the defendant in
order to be able to put forward his case: however the defendant refused to provide that
information without the claimant’s case having been set out.
31. But, in my judgment, there must be many situations where a party considers that an
opponent has possibly caused him some loss but has no evidence as such. In the absence
of any proof to support that suspicion, then proceedings cannot get off the ground. As
indicated above, a pre-action disclosure application would need to have evidence of an
arguable case and that must be the sort of threshold to apply in respect of Part 18
requests.
32. I am not convinced that the requests themselves are simple questions. But if they are
essentially binary in nature, I am not at all sure that a negative response would be the
end of the matter. As I put to Mr Dunne, the Part 18 responses in the Edwards & Others
cases denied that any commission had been received by the defendant but that had not
caused the claimants to decide against pursuing matters further. It may be that in those
cases, the evidence of the insurer’s administrators was sufficient to persuade the
claimants that an arguable case remained. But if that decision is based on the evidence
obtained by the claimants’ lawyers, then it simply highlights the difference between
that case and the present one.
33. It seems to me that the circumstances in Raubenheimer are, if not unique, then
sufficiently unusual to limit the effect of Ritchie J’s decision to the facts in that case. In
the rather more usual circumstances in this case – where there is no evidence before the
court that any commissions are paid by the insurer – in my judgment it would be
inappropriate to require the defendant to answer generic Part 18 questions. In the
absence of any stated suspicion, let alone any evidence to support it, the general
questions posed are a paradigm example of a fishing expedition.
34. It is no answer for the claimant to suggest that commissions are paid by insurers as can
be demonstrated by the evidence in Raubenheimer. It is no secret, in my view, that
insurance companies, and Lloyd’s syndicates in particular, have a wide variety of
arrangements to deal with claims handling on behalf of the insurer. But that
circumstance does not seem to me to go anywhere near far enough to require a party to
answer questions in the absence of any evidence in an individual case.
35. Similarly, I do not think that Mr Dunne is assisted by his argument that some of the
Edwards & Others cases involved a different insurer from Elite (and against whom there
was no evidence.) Ritchie J’s judgment and my case management decision to refer the
cases to the Chancery Division were squarely based upon the evidence obtained
regarding Elite. There was no submission to my recollection about any of the other
policies. It would have been unwieldy to say the least for different ATE insurance to
be looked at by different courts, but the issue was never raised. I do not think therefore
that it can be material to the decision I need to make in this case.
36. Furthermore, I am required by the overriding objective to deal justly with the case and
at proportionate cost. I am mindful of the limited sum involved in respect of this ATE
premium and the undesirability of hiving off part of the detailed assessment so that it
could be dealt with by a Chancery Division judge. This would be the likely course of
action if there was anything in the claimant’s dispute following the defendant having
answered the Part 18 request. In my judgment, before embarking on such a course of
action, the claimant must provide some evidence of an arguable case notwithstanding
the practical difficulties that might impose.
37. Accordingly, I dismiss the claimant’s application for an order that the defendant
responds to the Part 18 request that has been served by the claimant.