Chief
Master Hurst
THE BACKGROUND
1.
This case concerns the status of costs
negotiators, N L Grant Legal Costs Management (Grants), instructed by liability
insurers, Allianz Cornhill (Cornhill), to act on their behalf in relation to
questions of costs. Costs negotiators
have come to prominence in recent times and are typically paid by results in
that they receive by way of remuneration a percentage of the reduction in the
amount of costs which they achieve on behalf of the liability insurer. Such arrangements have given rise to
concerns that the question of costs may be being pursued over vigorously and
therefore disproportionately. In
these proceedings I am dealing with one straightforward case, but I understand
that the decision in principle is likely to have much wider implications.
2.
Costs negotiators and costs draftsmen
both deal with questions of costs but, as the names imply, costs draftsmen
typically become involved in drafting bills on behalf of receiving parties as
well as attending on detailed assessments on behalf of both paying and
receiving parties, whereas costs negotiators tend to be instructed by paying
parties (usually insurance companies).
Any person may set themselves up as a costs negotiator or costs
draftsman without the need to pass any exam or to join any professional body or
association. There is an Association
of Law Costs Draftsmen which requires its members to undergo training, to pass
exams and to abide by a code of conduct.
The Code of Conduct is in some respects similar to the Rules of
Professional Conduct which apply to solicitors. The Association has the power to discipline its members and
may, if necessary, expel a person from membership of the Association. As I have said there is no requirement
that costs draftsmen should be members of the Association and there are a
number of costs draftsmen of great ability, experience and high repute who are
not members of the Association. It
must also be said that there are some who lack those qualities. As a general rule costs negotiators do not
appear before this court but there is no reason to suppose, given the nature of
the work which they do, that they lack competence in their own field, nor is
there any reason, if certain necessary criteria are met, why they should not
appear.
THE FACTS
3.
Against that background I turn now to
look briefly at the facts of this particular case. On 5 November 2000 the Claimant was involved in a road
traffic accident and suffered personal injury. Originally liability was denied. Subsequently an offer was made on the basis of 50/50 liability
which was rejected. Proceedings were
commenced on 11 April 2001. There
were at that stage two Defendants and both defences were served by 4 June 2001
on which date a Part 36 payment was made.
The case proceeded through the normal stages of allocation and listing
until December 2001 when a further Part 36 payment was made bringing the total
payment to £2,000, which was accepted.
The First Defendant, Mr Powell, accepted responsibility for the accident
and agreed to pay both the Claimant’s and the Second Defendant’s costs.
4.
It was not possible to agree the
Claimant’s costs and accordingly detailed assessment proceedings were commenced
on 29 January 2002. Points of Dispute
were served by the First Defendant on 22 February 2002. These points were signed by Messrs
Beachcroft Wansbroughs the solicitors for the Defendant. The detailed assessment came before
District Judge Stevens at Stoke County Court on 16 May 2002. An independent costs draftsman, Mr Owen Jones,
appeared on behalf of the Defendant.
The solicitors for the Claimant raised the question of rights of
audience and I quote from the attendance note of the hearing which explains
what happened:
“I raised Mr Jones’ right of audience as a
preliminary issue. We argued Grants
had been instructed by the Def insurer and in turn Grants had instructed Owen
Jones.
Owen brought the instruction letter from
Beachcrofts to Grants. However, the
Judge did not agree that it formed proper instruction and stated that on the
def insurers instructions the file was passed to Grants to deal with the
costs. The Judge’s view was that the
def’s insurer had instructed Grants.
With Grants then instructing Owen the Judge
ruled that he was too remote from the solicitors to have rights of audience and
therefore ruled he could not be heard.”
5.
On 10 July 2002 the restored hearing
of the detailed assessment took place before Deputy District Judge McQueen. A
Mr Harrington of counsel represented the Defendant. Again the Claimant’s solicitors raised counsel’s right of
audience as a preliminary issue. The
attendance note reads as follows:
“… Judge held as facts:
Beachcrofts were sols for the def
throughout. The def’s insurers have a
liability to pay the claimant’s costs.
The def’s insurers instruct Grants direct. Grants negotiate direct with Cl’s sols although they may pass
papers through Beachcrofts. At the
last hearing the Judge ruled agent had no right of audience as was instructed
by Grants not Beachcrofts.
Counsel produced a letter from Rachel Quigly at
Beachcrofts stating they instructed Grants to attend hearing as their legal
representative, which included them instructing counsel if necessary.
Counsel admits he is instructed by and paid by
Grants.
CPR 47.14.17 applies [this refers to a note in
the White Book].
Position is BW appoint Grants to represent them
at hearing as agent, who in turn instruct counsel.
Judge considered Section 27 [Courts & Legal
Services Act 1990] held:
No contractual relationship between BW and
Grants. The instructions are one step
too far removed. There would only be a
right of audience if counsel instructed by BW direct. Counsel did not have a right of audience.”
6.
Pausing there, the only finding of
fact with which the Defendant disagrees in that attendance note is that the
Defendant insurers instruct Grants the costs negotiators direct. There has been no appeal against that
finding and both sides are content that I should consider the issue
afresh. The assessment was again
adjourned until 9 September 2002 when it came before District Judge
Chapman. On this occasion Mr Jonathan
Brennan of counsel appeared, as did Dominic Swallow of Grants. Again I quote from the attendance note:
“Raised both defs rights of audience. Counsel informed court he was only there
to argue for Dominic’s rights of audience.
Judge heard arguments from both sides. Judge gave a preliminary view. He stated he had no problem with counsel
attending. However he was concerned
with Grants attendance. Concerned
that Grants dictate instructions to Beachcrofts as agents of the defs
insurers. Also stated that if Grants
have a financial interest in the outcome of the hearing then further enquiry is
warranted. Said up to Claimant. Can either drop the point and proceed or
if wish to pursue the point regarding champerty then need further direction.
Elected to pursue the champerty point against
Grants.”
THE ISSUES
7.
As a result the District Judge gave
directions which are contained in his order dated 17 February 2002. So far as relevant those directions are:
“1. The
detailed assessment hearing is adjourned pending the determination of the
following preliminary issues namely:
(a) Did Mr Swallow of Grants Legal Costs
Management have a right of audience in relation to the hearing on 9 September
2002?
(b) Were the terms of payment pursuant to
which Mr Swallow appeared at that hearing champertous?”
8.
District Judge Chapman subsequently
ordered that the assessment of costs be transferred to the Supreme Court Costs
Office by an order dated 25 September 2002 (sealed on 7 October 2002).
9.
The Claimant submits that Grants,
whether through Mr Swallow or any other representative, ought not to be granted
rights of audience in the detailed assessment proceedings. Mr Bacon put forward three principal reasons
for this:
i)
Grants are not properly instructed as
agents of the solicitors on the record and cannot be said to be in the
“temporary employ” of the solicitors on the record.
ii)
The basis upon which Grants charge for
their work (including attending hearings) is based on an illegal contingency
fee agreement.
iii)
Grants like other costs negotiators
are not regulated by any professional body or organisation.
10.
Mr Birts for the Defendant submits
that Mr Swallow was employed or engaged to assist in the conduct of litigation
by appearing at the detailed assessment hearing on behalf of the First
Defendant. The Defendant further
submits that a letter of 30 January 2002 from Mutual Law (the trading name of
Beachcroft Wansbroughs) to Grants, which enclosed the file in relation to the
claim, had the effect of giving instructions to Grants in relation to the
proceedings. The instructions were to
assist in the conduct of the litigation by dealing with the costs and those
instructions were passed to a particular employee at Grants, a Mr Swallow, by a
letter of 3 September 2002 from Mutual Law.
(I will consider the correspondence further in due course). In those circumstances it is submitted
that Mutual Law validly authorised Grants to assist in the conduct of the
litigation while themselves remaining responsible for the performance of all
aspects of Mr Swallow’s duties including the receipt by him of proper detailed
instructions from an authorised source.
In relation to the second issue the Defendant submits that Grants’ terms
of remuneration, whilst amounting to a contingency fee agreement and an
agreement in support of litigation, was not champertous and in support of that
contention they rely on the decision of the Court of Appeal in R (Factortame
Ltd) v Transport Secretary (No.8) [2002] EWCA Civ 932; [2002] 3 WLR 1104.
THE APPLICABLE
LAW
11.
Section 27 of the Courts and Legal
Services Act 1990 deals with rights of audience, and, so far as relevant,
reads:
“27. Rights
of Audience
(1) The
question whether a person has a right of audience before a court or in relation
to any proceedings, shall be determined solely in accordance with the
provisions of this part.
(2) A
person shall have a right of audience before a court in relation to any
proceedings only in the following cases:
(a) where –
(i) he has a right of audience before that
court in relation to those proceedings granted by the appropriate authorised
body; and
(ii) that body’s qualification regulations
and rules of conduct have been approved for the purposes of this section in
relation to the granting of that right;
(b) where paragraph (a) does not apply but
he has a right of audience before that court in relation to those proceedings
granted by or under any enactment;
(c) where paragraph (a) does not apply but
he has a right of audience granted by that court in relation to those
proceedings;
(d) where he is a party to those proceedings
and would have had a right of audience, in his capacity as such party, if this
Act had not been passed; or
(e) where –
(i) he is employed (whether wholly or in
part) or is otherwise engaged to assist in the conduct of litigation and is
doing so under instructions given (either generally or in relation to the
proceedings) by a qualified litigator;
and
(ii) the proceedings are being heard in
Chambers in the High Court or a County Court and are not reserved family
proceedings.
. . .
(4) Nothing
in this section affects the power of any court in any proceedings to refuse to
hear a person (for reasons which apply to him as a individual) who would
otherwise have a right of audience before the court in relation to those
proceedings.
(5) Where
a court refused to hear a person as mentioned in sub-section (4) it shall give
its reasons for refusing …
(9) In this section—
“advocate”, in relation to any proceedings, means any person
exercising a right of audience as a representative of, or on behalf of, any
party to the proceedings;
. . .
“qualified litigator” means—
(i)
any practising solicitor (“practising”
having the same meaning as in section 19(8)(b) [that is one who has a
practising certificate in force or is employed wholly or mainly for the purpose
of providing legal services to his employer]);
(ii)
any recognised body; and
(iii)
any person who is exempt from the
requirement to hold a practising certificate by virtue of section 88 of the
Solicitors Act 1974 (saving for solicitors to public departments and the City
of London);
. . .
(10) Section 20 of the Solicitors Act 1974 (unqualified person not to
act as a solicitor), section 22 of that Act (unqualified person not to prepare
certain documents etc) and section 25 of that Act (costs where an unqualified
person acts as a solicitor), shall not apply in relation to any act done in the
exercise of a right of audience.”
12.
Section 119 of the 1990 Act deals with
interpretation as follows:
“ “Advocacy services” means any services which
it would be reasonable to expect a person who is exercising, or contemplating
exercising, a right of audience in relation to any proceedings, or contemplated
proceedings, to provide;
…
“Litigation services” means any services which
it would be reasonable to expect a person who is exercising, or contemplating
exercising, a right to conduct litigation in relation to any proceedings, or
contemplated proceedings, to provide;
…
“Right of audience” means the right to exercise
any of the functions of appearing before and addressing a court including the
calling and examining of witnesses;”
13.
Note 47.14.7 “Rights of audience on
detailed assessment” in the White Book is the note referred to by the District
Judge at the hearing on 10 July 2002.
That note is as follows:
“In detailed assessment proceedings, rights of
audience may be exercised by any counsel properly instructed by solicitors, any
solicitor or employee of a solicitor representing one of the parties to the
proceedings. If the party is legally
represented costs consultants, cost draftsmen and the like can only be heard on
the basis that they are temporarily, and for the purpose of those detailed
assessment proceedings, employees of the solicitors representing the
party. The solicitors are responsible
for the conduct of the detailed assessment proceedings and cannot avoid that
responsibility merely by instructing a costs draftsman.”
The note then goes on to quote the decision of the Court of Appeal
in Waterson Hicks v Eliopoulous, 14 November 1995 CA; Costs Law Reports (Core Volume) 363. That case involved the ostensible or
actual authority for costs draftsmen instructed in detailed assessment proceedings. In the circumstances of the case it was not
necessary for the court to reach a final decision on the point but certain
views were expressed, first by Neill LJ (at 372):
“On the facts of the present case, however, I
do not find it necessary to reach a final decision as to the ostensible
authority of an independent costs draftsman, but I am inclined to the view that
where a solicitor sends a costs draftsman to a taxation the other parties to
the litigation are entitled to assume in the absence of any information to the
contrary or unless the sums involved are very large, that the costs draftsman
has the same authority as to the solicitor would have had to consent to orders
which are not plainly collateral to the matters before the taxation officer.”
and second by Evans LJ (at 373):
“As regards the authority, actual or apparent,
of an independent costs draftsman who attends before the taxing officer, it
should be remembered that he can appear on behalf of the party only as a duly
authorised representative of the solicitor who has instructed him to be there. The scope of his apparent authority would
be the same, in my judgment, as that of any costs draftsman employed by the
firm. It is unnecessary to decide in
these proceedings where his authority would be co-extensive with that of the
firm or of the solicitor himself.”
14.
Mr Birts for the Defendant stated that
he had no quarrel with the terms of the note in the White Book which I have set
out above, but suggested that it did not go far enough, since in his submission
it does not cover the situation in this particular case.
15.
It is Section 27(2)(e)(i) of the 1990
Act which is the key to the first issue (concerning rights of audience). Mr Bacon referred also to Section 27(2)(c)
which deals with the grant of rights of audience by a court in relation to proceedings
before it. That is not this case but
it is instructive to look at the approach of Lord Woolf, Lord Chief
Justice, in relation to rights of
audience in Clarkson v Gilbert & Ors [2000] The Times 4 July CA
where he explained:
“10. Traditionally
the courts have exercised close control over who has rights of audience before
them. They do so in the interests of
the public and in the interests of the proper administration of justice. Normally there are available two options
to a person wishing to bring litigation.
First a lawyer who has rights of audience can be instructed to appear on
his behalf. Second, he can bring the
litigation himself acting in person.
It is an important well established principle of the administration of
justice in this jurisdiction (unlike some others) that the ordinary member of
the public has the right to come to court to conduct litigation
themselves. Whether it is before a
Magistrates Court, a County Court, the High Court or the House of Lords that
right has been maintained throughout the years. But, if somebody wishing to appear in person , wants somebody
who is not an advocate and who has no rights of audience to appear on his or
her behalf instead of someone who has the rights of audience, that, in my judgment,
has to be justified …
….
24. …
It is very important that courts, without going into the matter in a
disproportionate way, do satisfy themselves that it is right to extend rights
of audience to those who are not properly qualified. The courts are at a disadvantage and the public can be at a
disadvantage if rights of audience are too readily given to those who do not
have the necessary qualifications.”
16.
I include for the sake of completeness
a reference to the costs of litigants in person CPR 48.6:
“(1) This
rule applies where the court orders (whether by summary assessment or detailed
assessment) that the costs of a litigant in person are to be paid by any other
person.
….
(3) The
costs allowed to the litigant in person shall be –
(a) such costs which
would have been allowed if the work had been done or the disbursements made by
a legal representative on the litigant in person’s behalf;
(b) the payments
reasonably made by him for legal services relating to the conduct of the
proceedings; and
(c) the costs of
obtaining expert assistance in connection with assessing the claim for costs.”
17.
Paragraph 52.1 of the Costs Practice
Direction deals with who may be an expert for the purpose of paragraph (3)(c):
“52.1 In
order to qualify as an expert for the purpose of rule 48.6(3)(c) (expert
assistance in connection with assessing the claim for costs), the person in
question must be a:
(i) barrister,
(ii)
solicitor,
(iii)
Fellow of the Institute of Legal Executives,
(iv)
Fellow of the Association of Law Costs Draftsmen,
(v) law costs draftsman who is a member of the
Academy of Experts,
(vi) law costs draftsman who is a member of the
Expert Witness Institute.”
18.
It will be seen therefore that the
range of experts in respect of whom costs can be recovered under this rule is
strictly limited.
19.
In relation to the second issue, the
question of champerty, Mr Birts relies on the decision of the Court of Appeal
in R (Factortame Ltd) v Transport Secretary (No.8) [2002] EWCA Civ
932; [2002] 3 WLR 1104. In this case Lord Phillips MR gave the
judgment of the court and reviewed the law of champerty. It is useful to set out the general
principles as found by the court at this point, I will return to the more
specific points raised by Mr Birts in due course. The Court of Appeal said this:
“The Law of Champerty
31. Champerty
is a variety of maintenance.
Maintenance and champerty used to be both crimes and torts. A champertous agreement was illegal and
void, involving as it did criminal conduct.
Ss. 13(1) and 14(1) of the Criminal Law Act 1967 abolished both the
crimes and the torts of maintenance and champerty. S.14(2) provided, however:
“The abolition of
criminal and civil liability under the law of England and Wales for maintenance
and champerty shall not affect any rule of that law as to the cases in which a
contract is to be treated as contrary to public policy or otherwise illegal.”
Thus, champerty survives as a rule of public
policy capable of rendering a contract unenforceable.
32. ‘A
person is guilty of maintenance if he supports litigation in which he has no
legitimate concern without just cause or excuse’- (See Chitty on contracts 28th
Ed [1999], Vol.1, para 17-050.)
Champerty ‘occurs when the person maintaining another stipulates for a
share of the proceeds of the action or suit’ (Chitty paragraph 17-054). Because the question of whether maintenance
and champerty can be justified is one of public policy, the law must be kept
under review as public policy changes.
As Danckwerts L.J. observed in Hill
v Archbold [1968] 1 QB 686 at 697:
“…the law of
maintenance depends upon the question of public policy, and public policy … is
not a fixed and immutable matter. It is a conception which, if it has any sense
at all, must be alterable by the passage of time.”
33. In
Trendtex Trading Corpn v Credit Suisse [1980]
1 QB 629 at p.663 Oliver LJ remarked:
“There is, I think,
a clear requirement of public policy that officers of the court should be
inhibited from putting themselves in a position where their own interests may
conflict with their duties to the court by agreement, for instance, of so
called “contingency fees”.
34. The
introduction of conditional fees shows that even this requirement of public
policy is no longer absolute. This case
raises the question of whether the requirement extends to expert witnesses or
others in a position to influence the conduct of litigation and, if it does,
whether on the facts of the present case the agreements concluded by Grant
Thornton can be justified.
35. In
Trepca Mines Ltd (No.2) [1963] 1 Ch
199 at p.219 Lord Denning MR observed:
“The reason why the
common law condemns champerty is because of the abuses to which it may give
rise. The common law fears that the
champertous maintainer might be tempted, for his own personal gain, to inflame
the damages, to suppress evidence, or even to suborn witnesses. These fears may be exaggerated, but, be that
so or not, the law for centuries had declared champerty to be unlawful, and we
cannot do otherwise than enforce the law; and I may observe that it has
received statutory support, in the case of solicitors, in section 65 of the
Solicitors Act 1957.” [See now Section 59 of the Solicitors Act 1974]
36. Where
the law expressly restricts the circumstances in which agreements in support of
litigation are lawful, this provides a powerful indication of the limits of
public policy in analogous situations.
Where this is not the case, then we believe one must today look at the
facts of the particular case and consider whether those facts suggest that the
agreement in question might tempt the allegedly champertous maintainer for his
personal gain, to inflame the damages, to suppress evidence, to suborn
witnesses or otherwise to undermine the ends of justice.
37. In
reaching this conclusion we have been particularly influenced by the approach
of the Court of Appeal and the House of Lords in Giles v Thompson [1993] 3
All ER 321; [1994] 1 AC 142 ...
…
42. On
these facts Lord Mustill held that it was appropriate to consider whether the
mischief was established against which the public policy was directed. As to this, he observed at p.161:
“It is sufficient
to adopt the description of the policy underlying the former criminal and civil
sanctions expressed by Fletcher Moulton LJ in British Cash and Parcel Conveyors Ltd v. Lamson Store Service Co. Ltd
[1908] 1 K.B. 1006, 1014:
“It is directed against wanton and
officious intermeddling with the disputes of others in which the [maintainer]
has no interest whatever, and where the assistance he renders to the one or the
other party is without justification or excuse.”
This was a
description of maintenance. For
champerty there must be added the notion of a division of the spoils.”
…
44. This
decision [Giles v Thompson] abundantly supports the proposition that, in
any individual case, it is necessary to look at the agreement under attack in
order to see whether it tends to conflict with existing public policy that is
directed to protecting the due administration of justice with particular regard
to the interests of the defendant. This
is a question that we have to address.
In so doing we revert to the statement of Lord Mustill, at page 153,
that ‘the rule, now in the course of attenuation, which forbids a solicitor
from accepting payment for professional services calculated as a proportion of
the sum recovered from the defendant …survives nowadays, so far as it survives
at all, largely as a rule of professional conduct’. With respect, this
statement is not correct. The basis of
the rule is statutory. …”
20.
The Court of Appeal then went on to
consider Rule 8 of the Solicitors Practice Rules 1990 which forbids the use of
contingency fees. The court also
considered Section 58 of the 1990 Act which deals with conditional fee
agreements and the relevant Conditional Fee Agreement Regulations, as well as
the definitions in Section 119 of the 1990 Act which I have already set out.
21.
The Master of the Rolls first
considered s.58 in its original form:
“50. …
There is an issue, however, as to whether the ‘conditional fee agreements’
explicitly permitted, and those that are implicitly unenforceable, by reason of
the provisions of s.58, are restricted to agreements concluded by solicitors
and others authorised to ‘conduct litigation’, or whether they extend to
agreements by any person or body providing services ancillary to the conduct of
litigation. Mr Hancock QC for the
Claimants argued that the former was the position and that s.58 was not
relevant to the issues arising on this appeal.
Mr Friedman submitted that the 1998 contracts were in respect of
‘litigation services’ and constituted ‘conditional fee agreements’ within the
meaning of that phrase in s.58. In that
they were not expressly permitted by s.58 they were implicitly forbidden.
51. This
issue arises more acutely in relation to the provisions of s.58 after their
amendment by the Access to Justice Act 1999 …”
22.
The court then went on to consider
Section 58 of the 1990 Act as substituted by Section 27(1) of the 1999
Act. The judgment continues:
“54. We
have concluded that Mr Hancock’s submissions on this issue are correct. ‘Conditional fee agreements’ under s.58
embrace only agreements for the provision of litigation or advocacy services
concluded by those with rights to conduct litigation (s.28) or those with
rights of audience (s.27). Our reasons
for this conclusion are as follows:
55. Ss.27,
28 and 58 are all located in Part II of the 1990 Act. The objective of Part II, referred to as ‘the statutory
objective’ is stated in its first subsection:
“17 The statutory objective and the general
principle
(1) The general objective of this Part is
the development of legal services in England and Wales (and in particular the
development of advocacy, litigation, conveyancing and probate services) by
making provision for new or better ways of providing such services and a wider
choice of persons providing them, while maintaining the proper and efficient
administration of justice.”
56. Part
II deals exclusively with the authorisation of persons to provide different types
of legal services, with their regulation and with Ombudsmen schemes relating to
the provision of legal services. In its
context it is natural to read s.58 as applying to the provision of advocacy and
litigation services by those authorised in accordance with the earlier sections
to exercise rights of audience or conduct litigation. There is nothing in the section which suggests that it is
intended to apply to the provision of services ancillary to the conduct of
litigation by the many different categories of person who have, in the past,
been accustomed to assist with the conduct of litigation.
57. This
conclusion is supported by the Regulations that were passed pursuant to
s.58. … The term “legal representative”
is appropriate to describe a person conducting the litigation, or exercising
rights of audience on behalf of the litigant.
It is not appropriate to describe persons … who are providing services
ancillary to those provided by those conducting the litigation. While provisions in a Statutory Instrument
cannot alter the meaning of the primary legislation under which they are made,
it seems to us legitimate to refer to them as confirming what appears to be the
legislative intention of the provisions of the primary legislation.
…
59. These
passages confirm our view that the legislative intent was that the provisions
of s.58 of the 1990 Act were intended to apply only to those who could be
described as ‘litigators’, that is advocates and those conducting the
litigation.
60. There
is good reason why principles of maintenance and champerty should apply with
particular rigour to those conducting litigation or appearing as
advocates. To demonstrate this we can
do no better than cite a passage in the judgment of Buckley LJ in Wallersteiner v Moir (No 2) [1975] QB
373 at p.401-402:
“A contingency fee,
that is, an arrangement under which the legal advisers of a litigant shall be
remunerated only in the event of the litigant succeeding in recovering money or
other property in the action, has hitherto always been regarded as illegal
under English law on the ground that it involves maintenance of the action by
the legal adviser. Moreover where, as
is usual in such a case, the remuneration which the adviser is to receive is to
be, or to be measured by, a proportion of the fund or of the value of the
property recovered, the arrangement may fall within that particular class of
maintenance called champerty….. It may, however, be worthwhile to indicate
briefly the nature of the public policy question. It can, I think, be summarised in two statements. First, in litigation a professional lawyer’s
role is to advise his client with a clear eye and an unbiased judgment. Secondly, a solicitor retained to conduct
litigation is not merely the agent and adviser to his client, but also an
officer of the court with a duty to the court to ensure that his client’s case,
which he must, of course, present and conduct with the utmost care of his
client’s interests, is also presented and conducted with scrupulous fairness
and integrity. A barrister owes similar
obligations. A legal adviser who acquires a personal financial interest in the
outcome of the litigation may obviously find himself in a situation in which
that interest conflicts with those obligations.”
61. These,
then, are the reasons that have led us to conclude that s.58 of the 1990 Act,
both as originally enacted and as amended by the 1999 Act, applies only to
agreements concluded by those conducting litigation or providing advocacy
services. The effect of the section extends
more widely, however, for it reflects Parliament’s assessment of the present
state of public policy in this area. Thus, in Awwad v Geraghty [2001] QB 570 at 600 the Court of Appeal held that
there was no scope for the Court to hold that the common law permitted
conditional fee agreements that did not conform to the requirements imposed by
s.58 and, in Bevan Ashford v Geoff
Yeandle (Contractors) Limited (in Liquidation) [1999] Ch 239 Sir Richard Scott V-C held that the
provisions of s.58, which applied only to litigation, should be applied by
analogy to solicitors who were conducting arbitration.
62. More
generally, however, s.58 evidences a radical shift in the attitude of public
policy to the practice of conducting litigation on terms that the obligation to
pay fees will be contingent upon success.
Whereas before this practice was outlawed, it is now permissible –
subject to the requirements imposed by the section. These requirements do not appear designed to mitigate the
mischief that had led to the banning of contingency fees - the undesirability
of the interests of officers of the court conflicting with their duties to the
court. Rather the requirements appear
designed to protect the litigants concluding conditional fee agreements who,
when the section was first enacted, were required to pay any ‘uplift’ out of
their recoveries. Conditional fees are
now permitted in order to give effect to another facet of public policy – the
desirability of access to justice.
Conditional fees are designed to ensure that those who do not have the
resources to fund advocacy or litigation services should none the less be able
to obtain these in support of claims which appear to have merit.
THE AGREEMENT
BETWEEN CORNHILL AND GRANTS
23.
The insurance company Cornhill stands
in the shoes of the Defendant in accordance with normal subrogation
rights. Mr R W Rabbitts, the
technical claims manager of Cornhill, in his witness statement of 1 October
2002 explained (paragraph 2) that Grants had been providing a costs handling
service to Cornhill for over six years, both directly and through panel
solicitors. They are regularly
instructed by Cornhill’s branches in court actions where Cornhill’s insured is
a party and required to pay the opponent’s costs.
24.
In about 1994 it seems that Cornhill’s
Birmingham office agreed an arrangement with Neil Grant whereby his company
would be paid on the basis of a percentage of savings on costs achieved. Although Mr Rabbitts had made enquiries
about this he was satisfied that the arrangement was never recorded in writing,
nor were any variations in the agreement recorded in writing until he became
involved in January 2001 when he took over as manager. In January 2001 he had a meeting with Neil
Grant and new terms were agreed to come into effect on 1 February 2001. Those terms were set out in a letter to
Neil Grant dated 18 January 2001.
Grants were to be remunerated on the basis of a commission payable at a
set rate provided that they, Grants, achieved a monthly average gross saving of
a given percentage on claimants’ costs over a 12 month period for a guaranteed
number of cases. In the event that the
target was not met Grants’ commission would be reduced to a lower percentage
figure. Mr Rabbitts explains in his
witness statement (paragraph 9) that the reason a percentage mark-up was chosen
over an hourly rate charge was because it was a simple way to achieve quality
control and went some way to relating the fees paid to the level of costs
claimed. It was intended to act as an
incentive to Grants to maximise the discount they were able to achieve. Mr Rabbitts goes on to explain:
“11. There
is a standing instruction with Cornhill panel solicitors including Beachcroft
Wansbroughs that once a matter is settled costs will be referred to Grants.
12. Although
the panel solicitor sends the file to Grants, it is handled by Grants under the
terms of Grants retainer with Cornhill.
Any bill from Grants for further services is sent to Cornhill and is
calculated in accordance with their retainer with Cornhill.
13. The
panel solicitor remains on the court record as acting for Cornhill’s
insured. If an attendance is required
at an assessment hearing, the solicitor will normally agree (as in this case)
to a member of Grant’s staff attending the hearing as their agent.
14. The
panel solicitor’s fees are dealt with separately between Cornhill and the panel
solicitor without including Grants.
For the avoidance of doubt no bill will be rendered by Grants to the
panel solicitor.”
25.
Mr Peter Steadman, managing director
of Grants Legal Costs Management, by his witness statement of 4 October 2002
essentially confirmed what Mr Rabbitts had said, and concluded by showing that
in the period 1 January 1999 to 4 October 2002 his company had dealt with some
27,700 cases on behalf of Cornhill and had achieved a saving in costs of £20.8
million.
THE EVIDENCE AS
TO THE ISSUES ARISING IN THIS DETAILED ASSESSMENT
26.
On 29 January 2002 the Claimant’s
solicitors served notice of commencement of assessment. On 30 January 2002 Messrs Beachcroft
Wansbroughs, the Defendant’s solicitors, writing under their trading name
Mutual Law, wrote to Grants as follows:
“We enclose our file in relation to the above
claim in accordance with the Cornhill International protocol for the
determination of third party costs.
We have told the Claimant’s solicitors that you
will be dealing with costs but would ask that you contact them direct within
the next 7 days, ie on or before 6 February 2002, to confirm your involvement.
At the conclusion of the matter we would be
grateful if you would return the complete file, so that we may archive the
matter, together with a short note stating the amount of costs agreed/assessed
and confirmation that the cost payment has been discharged.
Please acknowledge receipt of this letter and
our file. If you have any queries
regarding this matter please telephone the writer …”
27.
It is this letter which was produced
to the District Judge at the first hearing on 16 May 2002. The only other relevant letter which I
have seen is dated 3 September 2002 from Mutual Law to Dominic Swallow of
Grants. This reads:
“We refer to the detailed assessment hearing
fixed for 9 September in the Stoke County Court.
Pursuant to Section 27(2)(e)(i) of the Courts
& Legal Services Act 1990, we hereby appoint you to act as our agent at the
forthcoming hearing in the above matter.
We confirm that we have briefed counsel, Mr
John Brennan … to represent the Defendants interests.”
28.
Mr Bacon relies on a number of
attendance notes exhibited to the witness statements of Paul Kimber, a trainee
solicitor with the Claimant’s solicitors, and Thomas Walsh, a costs draftsman
employed by those solicitors, both dated 3 October 2002 which he says
demonstrate the fact that it was in fact Grants who were instructing Beachcroft
Wansbroughs rather than the other way round.
29.
The relevant parts of the attendance
notes are as follows:
i)
4 April 2002 - Paul Kimber spoke to
Liz Simmons at Beachcroft Wansbroughs:
“Liz says she has
been in touch with Grants – they have asked her to ask us if we can make them
our best offer they will then speak to the insurers to see if they will come up
from their offer.
I said it is up to
them to make an offer that puts us at risk.
We have made an offer which I am happy is close. They have made an offer £3,000 less than
this.”
ii)
13 May 2002 - Thomas Walsh spoke to
Liz Simmons
“Liz has been asked
by Grants to ring us to see if the assessment can be stayed pending
Callery. I said I could agree to the
additional liabilities being stayed but there is no reason not to deal with the
base costs. I asked her to take
instructions on agreeing base costs, she will speak to Grants and revert.”
iii)
13 May 2002 - Paul Kimber spoke to Liz
Simmons
“Spoke to Liz to
see if she had taken instructions from Grants.
She said she has
and they say hearing is to proceed.”
iv)
16 May 2002 - The hearing took place
before District Judge Stevens to which I have already referred.
v)
9 July 2002 - Paul Kimber spoke to
Rachel Quigly at Beachcroft Wansbroughs
“Asked Rachel who
will be attending tomorrow’s hearing in Stoke County Court.
She said that
Grants were dealing and that they had instructed an agent to attend on behalf
of the Defendants. She said a Graham
Barber was dealing at Grants and I should speak to him to see who he had
instructed.”
vi)
10 July 2002 - Hearing before Deputy
District Judge McQueen
vii)
11 July 2002 – The Claimant’s
solicitors wrote to Beachcroft Wansbroughs requesting further information to
establish whether or not there was a proper retainer between the Defendant
and/or his insurers and the solicitors representing the Defendant and between
the Defendant and the Defendant’s appointed costs negotiator. The requested information was never
supplied.
viii)
2 August 2002 - Paul Kimber spoke to
Naomi Marshall at Beachcroft Wansboughs:
“… I said that it
appears from correspondence that they are taking instructions from Grants. She said she is instructed by the insurer
and she has instructed Grants. I said
that the Judge has already ruled at the first two hearings that Grants are
instructed by the insurers.
I said we are
concerned that Grants are paid on a percentage basis and they instruct
Beachcrofts with regard to costs.”
ix)
22 August 2002 - Paul Kimber spoke to
Rachel Quigly at Beachcroft Wansbroughs
“I said we have
made an offer back in May and we still have not had a response, despite my
chasing. She said they are struggling
to take instructions from Grants. She
said the file had been transferred from Christine Phoenix to Dominic
Swallow. She called Dominic everyday
but has been unable to speak to him, as he is never in the office. I suggested she speaks to his team leader,
as I know that Dominic is doing their hearings and is rarely in the
office. She will try him again today
and if not will try to speak to someone else there.
I asked if counsel
was still attending the next hearing and whether it was still Tim Harrington.
She said that
Grants had instructed a different barrister, a Jonathan Brennan from Citadel
Chambers to attend.
She will come back
to me re the offers if she can speak to someone from Grants.”
x)
There then followed a number of
telephone conversations which were inconclusive, including 2 September 2002
when Paul Kimber spoke to Naomi Marshall:
“Chased Naomi – she
still has not managed to obtain any instructions from Grants – she will chase
them and revert.”
xi)
3 September 2002 Paul Kimber spoke
again to Naomi Marshall
“Naomi has spoken
to Grants. Grants have rejected my
offers and the matter is to proceed to the detailed assessment on Monday.
Beachcrofts will
not respond to our Part 18 request for information regarding their retainer.”
xii)
9 September 2002 – Hearing before
District Judge Chapman
THE RIGHT OF
AUDIENCE ISSUE
30.
Mr Birts argues that this question is
simply resolved as a matter of construction of Section 27(2)(e). He submits that the words “by a qualified
litigator” govern only the giving of instructions and not the employing or
engaging to assist. Thus, he says, it
does not matter who employs or engages the person who is to have a right of
audience provided he or she is authorised to do so: in particular he need not be a qualified litigator; he could be (and often is) the client. Furthermore he suggests that since
instructions may be given by a qualified litigator “either generally or in
relation to the proceedings” the instructions referred to are basic
instructions to act rather than the factual detail of instructions themselves
which may well come from another source.
He argues that “instructions” simply means instructions given by the
qualified litigator to the employee or agent under which the litigator, while
delegating aspects of his litigation duties to the employee or agent
nevertheless remains responsible for their proper performance in the litigation
of which he has conduct. He suggests
that all that is required is for the qualified litigator to give the employee
or agent instructions under which the qualified litigator maintains control of
the employees’ or agents’ performance of his duties whether generally or in
relation to specific proceedings; and
from whatever source the factual detail of the latter’s instructions may come.
31.
Mr Birts then goes on to argue that by
their letter of 30 January 2002 Mutual Law “employed or engaged Grants to
assist in the conduct of the litigation in that they asked Grants to deal with
the costs aspect of the claim on behalf of the First Defendant”.
32.
I reject that submission. In my judgment Section 27(2)(e) does not
give Grants a right of audience in this case.
The letter of 30 January 2002 enclosed the Defendant’s file “in accordance with the Cornhill
International Protocol for the determination of third party costs”. It is clear from the witness statements,
to which I have referred, and from the letter of 18 January 2002 that Grants
were employed or otherwise engaged by Cornhill who in turn agreed to supply
Grants with a guaranteed minimum number of cases in a 12 month period.
33.
The Cornhill International Protocol
for the determination of third party costs has not been disclosed but it may be
inferred that it is a term of the agreement between Cornhill and its panel
solicitors that when the question of costs comes to be decided the file must be
sent to Grants (or possibly other nominated costs negotiators) as described by
Mr Rabbitts in paragraph 12 of his statement. The question then is: are Grants assisting in the conduct of
litigation and doing so under instructions given (either generally or in
relation to the proceedings) by a qualified litigator? The answer to that question is no.
34.
Mr Birts argues further that by their
letter of 3 September 2002 Mutual Law appointed Mr Swallow, an employee of
Grants, to act as their agent at the hearing on 9 September. Mr Birts submits that Mr Swallow was
therefore employed or engaged to assist in the conduct of the litigation by
appearing at the detailed assessment on behalf of the First Defendant. He argues that in delegating the conduct of
the detailed costs hearing to Mr Swallow Mutual Law did not relinquish
responsibility for the conduct of the litigation but retained it
throughout.
35.
I also reject that submission. The reality of the situation, as evidenced
by the attendance notes which I have set out is that the whole issue of costs
was passed to Grants to deal with by Mutual Law on the instructions of
Cornhill. The normal process of
lawyers advising the client and taking the client’s instructions and then
delegating their function to a costs specialist is entirely absent. It is clear that the letter of 3
September 2002 was merely the result of difficulties encountered at earlier
hearings. Although the letter of 3
September appears to be a valid letter of appointment, Mutual Law were
purporting to appoint Mr Swallow to be their agent in respect of matters which
they themselves had no authority to pursue, namely the assessment of
costs. Grants themselves had
previously purported to appoint an agent (see paragraph 28(v) above).
36.
The whole tenor of the legislation and
the authorities is to provide protection not only for those using the courts
but also for the court itself, as Buckley LJ said in Wallersteiner v Moir,
when explaining the public policy:
“It can, I think, be summarised in two
statements. First, in litigation a
professional lawyer’s role is to advise his client with a clear eye and an
unbiased judgment. Secondly, a
solicitor retained to conduct litigation is not merely the agent and adviser to
his client, but also an officer of the court with a duty to the court to ensure
that his client’s case, which he must, of course, present and conduct with the
utmost care of his client’s interests, is also presented and conducted with
scrupulous fairness and integrity. A
barrister owes similar obligations.”
The court must be able to rely implicitly on those appearing before
it. Both barristers and solicitors
have, as part of their Rules of Professional Conduct, the requirement that the
court must not be misled. In certain
limited circumstances a litigant in person may be entitled to rely on the
advice of experts or the help of a MacKenzie Friend. That is not the case here.
The Defendant was properly represented by solicitors throughout and it
was their responsibility to arrange for appropriate representation at the
detailed assessment proceedings and to supervise that representation. There is nothing in my view inherently
wrong in a requirement by an insurance company that, when costs come to be
determined, a particular firm of costs draftsmen should be instructed. Those instructions must come from the
instructing solicitors who have themselves been properly instructed and who are
required to consider the claim for costs and advise the client. It is abundantly clear in this case that
Grants were attempting to run the detailed assessment proceedings without
reference to the Defendant’s solicitors under the umbrella of the
correspondence to which I have referred, which does not, for the reasons I have
given, achieve its objective.
37.
An example of the difficulties which
arise when costs negotiators are instructed direct by insurance companies and
in turn instruct solicitors, may be seen in my decision in Salmons v Perch
30 April 2002 (unreported) which was relied on by Mr Bacon. In that case the defendant’s solicitors
conceded that they had no proper retainer from the defendant with the result
that a wasted costs order was made against them in respect of the assessment
proceedings they had pursued on the defendant’s behalf.
38.
Even if it is subsequently decided
that I am wrong in stating that Grants were not employed or engaged by Mutual
Law this does not overcome the problem that they appear to have been dealing
with the question of costs without reference to the solicitors at all. The solicitors in their letter of 13
January 2002 clearly do not expect to hear further from Grants until the
conclusion of the matter and merely request “a short note stating the amount of
costs agreed/assessed”. That cannot
in my view amount to assisting in the conduct of litigation under
instructions given (either generally or in relation to the proceedings) by a
qualified litigator. I am not told
of any other instructions Mutual Law may have given Grants, whether generally
or in relation to this case. I infer
that there are none. I am driven to
the regrettable conclusion that Beachcroft Wansbroughs/Mutual Law were not
supplying any services to the Defendant they were merely allowing the use of
their name in the detailed assessment proceedings.
THE CHAMPERTY
ISSUE
39.
Mr Birts accepts that Grants terms of
remuneration, set out in the witness statement of Mr Peter Steadman, amount to
a contingency fee agreement and an agreement in support of litigation, but he
says that the fact that they have a direct financial interest in the outcome of
costs assessments does not mean their terms of payment are champertous and
unlawful. In support of this
submission he relies on the Court of Appeal decision in Factortame.
40.
Mr Bacon asserts that the arrangement
between Grants and Cornhill is an illegal, champertous agreement which is
unenforceable, both according to statute and the common law, with the
consequence that the court, when exercising a discretion to grant rights of
audience, should not grant such rights to those acting under illegal
champertous agreements; and that
Grants’ fees, were the Defendant to be awarded costs, would not be recoverable
between the parties. Mr Bacon argues
that the agreement between Grants and the Company is caught by Section 58 of
the 1990 Act because Grants provide litigation services and advocacy
services.
41.
It is not disputed that the agreement
does not comply with the Conditional Fee Agreement Regulations 2000. Mr Bacon goes on to point out that in Factortame
the disputed agreement was not caught by Section 58 as the accountants were
providing services which fell outside “litigation services” or “advocacy
services”. They were in fact
providing expert witness services. He
submits however that Grants provide both litigation and advocacy services and
as such are caught by Section 58.
42.
Mr Bacon goes on to say that, even if
the agreement does not fall foul of Section 58, it should be struck down as a
contingency fee agreement at common law.
He relies on what the Master of the Rolls said in Factortame:
“84. A
contingency fee agreement which entitles those providing litigation services to
a percentage of anything recovered may give rise to particular objection on the
ground that it poses a temptation to act in an unethical manner in order to
achieve the maximum recovery. …
Nonetheless, it is pertinent to consider the role played by Grant Thornton in
order to see whether the nature of their interest in the outcome of the
litigation carried with it any tendency to sully the purity of justice on the
facts of this case.”
43.
In Mr Bacon’s submission the agreement with Grants falls squarely
within the points raised by the Master of the Rolls. He suggests correctly, that the position of costs negotiators
such as Grants is quite different from that of the accountants in Factortame. Costs negotiators are unregulated, often
not legally qualified in any respect, and, in the present case, not members of
the Association of Law Costs Draftsmen.
He also points out that the Court of Appeal had very much in mind the
fact that the conducting solicitor, a Mr Swabey, had “very properly insisted on
remaining in control of the conduct of the litigation”. As I have already pointed out the
Defendant’s solicitors in this case did not remain in control of the assessment
proceedings in any way.
44.
Mr Birts position is that Grants were
not providing advocacy or litigation services but were merely “assisting in the
conduct of litigation” (in the same way as the accountants in Factortame),
and their agreement is therefore not caught by Section 58 of the 1990 Act.
45.
Mr Birts typified the relationship
between Cornhill, the solicitors and Grants as triangular, with the insurance
company at the apex, instructing both the solicitors and Grants; with the solicitors referring to Grants, on
the instructions of the insurers, those cases which have led to
litigation; and with the retainer by
Grants of Beachcrofts for litigation services, where Beachcrofts have not
previously been on the record. Mr
Birts argues that “instructions” can and do pass in both directions. Grants are he says acting under the
instructions of Beachcrofts as the qualified litigators and the solicitors are
receiving instructions from Cornhill through the agency of Grants.
46.
Mr Birts argues that Grants’
contingency fee agreement with Cornhill is in accordance with public policy
today. It is in the public interest
because of the saving of costs which are achieved. It is therefore a beneficial agreement.
47.
He argues that Grants are not providing
litigation or advocacy services, they are merely supplying ancillary services,
for example: clerical assistance; and even though Mr Swallow appeared at the
detailed assessment hearing with the intention of addressing the court he was,
in Mr Birts’ submission, assisting in the conduct of litigation. In my judgment that submission, which
appears to cut directly across Mr Birts’ submission in respect of rights of
audience, cannot possibly be right.
Section 27 of the 1990 Act states that the question whether a person has
a right of audience before a court must be determined solely in accordance with
the provisions of that Part of the Act.
The only circumstances in which a person may have a right of audience
before the court (if he does not have a right granted by an authorised body)
is, if the court grants a right in relation to the particular proceedings
(Section 27(2)(c)), or he is employed or otherwise engaged to assist in the
conduct of litigation and is doing so under instructions given by a qualified
litigator (Section 27(2)(e)(i)).
Section 119 of the 1990 Act defines “right of audience” as meaning “the
right to exercise any of the functions of appearing before and addressing a
court …” That is exactly what Mr
Swallow was proposing to do. His purpose in attending was, in my judgment,
to provide “advocacy services” because he was contemplating exercising a right
of audience in relation to the proceedings.
As I have already found, he did not have a right of audience because he
was not employed or otherwise engaged to assist in the conduct of litigation
under the instructions given by a qualified litigator.
48.
If the court were to consider granting
Mr Swallow a right of audience in relation to these proceedings under Section
27(2)(c) of the 1990 Act it would not in my judgment be right to do so because
of the admitted contingency fee agreement under which Grants operate.
49.
As to Mr Bacon’s argument that Grants’
agreement with Cornhill is caught by Section 58 of the 1990 Act; this argument fails for the reasons given by
the Master of the Rolls in Factortame (paragraph 59): the section is intended to apply only to
“litigators” ie advocates and those conducting litigation. Neither Grants nor Mr Swallow are
“litigators”.
50.
Mr Birts argues that Grants’ agreement
is not champertous for the following main reasons:
i)
Grants cannot be held to be
inter-meddling in the litigation because it is litigation in which they have a
proper business interest having been formally instructed to act for a party.
If Grant’s business interest in this
case could be described as a proper business interest I agree. As to this see (iii) below.
ii)
Grants do not enjoy a share of the
proceeds. The fact that they are paid
by results by the paying party who benefits from costs savings achieved by
Grants means that they do not share in the proceeds whether directly or
indirectly.
Mr Birts suggests that the “proceeds of
the litigation” in this context are the costs obtained by the receiving
party. In my view that submission is
flawed because the “proceeds of litigation” or “spoils” as they are sometimes
called will only ever take tangible form in the hands of a successful party,
either as damages or costs. It is
necessary to take into account, not only amounts received but also amounts
preserved. It seems to me that
savings achieved on behalf of a losing insurance company (to the tune of £20
million per year) is in fact a very significant element of the proceeds of
litigation and Grants’ remuneration is a share of that element.
iii)
Public policy no longer holds that an
agreement under which a representative of a party to litigation is paid by
results offends the integrity of justice.
The introduction of conditional fees demonstrates that such agreements
are now in accordance with public policy subject to the statutory safeguards.
The relevant words here are “subject to
the statutory safeguards” which the agreement with Grants clearly is not.
iv)
Public policy favours containment of
litigation costs and an agreement which rewards a representative according to
savings of such costs achieved by him is manifestly in accordance with public
policy. The benefits of costs
negotiators’ services are self evident in an area of specialist expertise.
I disagree for the reasons given under
(ii) above. This submission is
tantamount to stating that the ends (costs savings) justify the means (payment
by results). Plainly they do not.
v)
There can be no threat to justice
because the performance of costs negotiators’ duties is subject to the
supervision of a qualified litigator and the discipline of court rules of
procedure enforced by a Costs Judge, an expert in the field.
I reject that submission because, as I
have found, Grants purported to perform their duties under supervision which was
wholly illusory. In any event even if
Grants themselves were a firm of solicitors their agreement would be
champertous. (This point also applies
to points vi) and vii) below.)
vi)
This is not a type of litigation where
evidence can be contaminated or the process of justice corrupted. There are no witnesses (or very rarely) the
material is limited to documents produced by claimants and the exercise is one
of evaluation and submission on (usually) agreed facts. There is no opportunity for costs negotiators
to manipulate the proceedings or the parties to them.
This may be so on the facts of this
case but this may not always be the case.
vii)
There is nothing to suggest that
Grants agreement might tempt Mr Swallow to undermine the ends of justice or
unfairly prejudice the interests of the opposing party for his personal gain or
otherwise.
As I indicated at the outset,
arrangements of this type give rise to concerns that the question of costs may
be pursued over vigorously and therefore disproportionately and in breach of
the overriding objective. This is in
my judgment a very real concern and is one of the reasons why the control of
those appearing before the courts is so rigorously controlled by Section 27 of
the 1990 Act, and the authorities which I have quoted.
CONCLUSIONS
51.
It follows from the above that the
answers to the two preliminary issues are:
i)
Mr Swallow of Grants did not have a
right of audience in relation to the hearing on 9 September 2002.
ii)
The terms of payment pursuant to
which Mr Swallow appeared at that hearing were (as between Grants and Cornhill)
champertous.
DRAFT
CONSEQUENTIAL ORDER
IT IS ORDERED that pursuant to CPR 31.22(2)
the Claimant is prohibited from using the letters from Cornhill to Grants dated
18 January 2001 and 24 January 2001 in subsequent proceedings or from making
those documents available to the public.
PTH\42\Ahmed v Powell
