Richard Hackett reviews the recently reported case of Scott -v- Hull and East Yorkshire Hospitals NHS Trust in which a costs claim was struck out after the Regional Costs Judge, District Judge Besford could not satisfy himself that there was a valid retainer between the Claimant and his solicitor.

The proceedings

The claimant succeeded in a claim for clinical negligence against an NHS Trust. He was represented by rapid response solicitors. The parties were unable to reach agreement on the amount to be paid in respect of the claimant’s legal costs at the conclusion of the case and so the matter was listed for a detailed assessment hearing (the procedure by which the court decides how much is payable).

Claim of £112,000 for legal costs

Although the amount of damages had been relatively modest, a total of £112,000 was initially claimed in costs. The claimant’s bill of costs, which was certified as accurate by a representative of rapid, referred to a Conditional Fee Agreement (CFA) between rapid and the claimant. The bill charged for rapid’s work at the rate of £400 per hour. They also sought to recover a success fee of 100%.

Points of Dispute served on behalf of the defendant trust in reply to the bill of costs included an enquiry as to whether there had been a second CFA. This was initially denied by rapid.

Amendment of costs claim to £36,000

In advance of the detailed assessment hearing, rapid amended the bill, to charge a rate of £146 per hour and a reduced success fee of 54%. The amended bill totalled approximately £36,000. It also emerged that, in the course of the main proceedings, the CFA had been terminated and a new CFA had subsequently been entered into between rapid and the claimant.

Responding to a request for the disclosure of relevant documents, rapid exercised the right not to disclose the two CFAs and instead filed a statement containing some information regarding them.

The judgment

District Judge Besford confirmed that the court could not order disclosure of the claimant’s CFAs. He indicated, however, that he would have expected the statement filed in lieu of disclosure to be ‘more candid’ in the information it provided and for the deponent to have more intimate knowledge of the file.

It was observed that the statement provided by rapid did ‘not come anywhere near the particularity normally seen’. He highlighted ‘a number of flaws throughout this assessment’ in the paperwork and oral evidence from rapid. Being unable to satisfy himself that rapid had a valid retainer, he struck out the claim for costs. 

Comment

Many solicitors bringing costs claims have been willing to disclose their CFAs. As for those solicitors who have hitherto taken a less candid approach, this judgment sends out an important message: the courts will expect to be provided with satisfactory evidence proving the existence of a valid retainer or otherwise the costs claim will fail.  

If you have concerns about whether claimant lawyers are being candid about their costs or the nature of their retainer with their client, raise this with your legal advisers, who can make appropriate enquiries.