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White v Revell, High Court, 8 September 2006

29 September 2006
The issues

Conditional Fee Agreement – CFA – Conditional Fee Agreements Regulations 2000 Regulation 4 – Costs – Time at which Regulation 4 advice should be given to a Claimant entering into a CFA.

The facts

The Claimant suffered a serious road traffic accident in December 2000 which was subsequently settled for £1.6 million. The Claimant initially instructed David Gist Solicitors of Bristol, who were panel solicitors for Legal Expenses Insurers DAS, the benefit of whose assistance the Claimant had as part of his motorcycle insurance. Subsequently in November 2001 he instructed Irwin Mitchell. Irwin Mitchell acted for the Claimant first on a privately funded basis and on 8th January 2003 the Claimant entered into a CFA. The Defendant argued that it had no liability for the Claimant’s costs on the basis that there had been a failure to comply with the Conditional Fee Agreement Regulations, Regulation 4 generally and specifically with Regulation 4(2)(c) and that such breaches had a materially adverse effect either on the protection afforded to the client or on the proper administration of justice and consequently the Court should find that the CFA was unenforceable as between the Claimant and his solicitors.

The decision

The Claimant was aware of his DAS policy when he met the solicitor at Irwin Mitchell. The solicitor was well aware of the terms of DAS policies generally and the policy was discussed with the Claimant. Although she said, and recorded in her note, that she thought that Irwin Mitchell would probably be able to get approval from DAS for them to act on the Claimant’s behalf, this turned out not to be the case, as was confirmed by DAS subsequently. In view of the urgent need to obtain expert medical evidence it was reasonable for the Claimant’s solicitors to rule out the possibility of waiting until the issue of proceedings before asking DAS again to indemnify Irwin Mitchell’s costs.

Having regard to the nature of the Claimant and his education and professional experience (a quantity surveyor), Irwin Mitchell were not under a duty to advise him to consult another firm of solicitors who were on the DAS panel. The Claimant had been recommended to consult Irwin Mitchell on the basis that they had expertise in dealing with cases such as his own.

It had been submitted for the Defendant that the Claimant’s solicitor had failed to satisfy Regulation 4(2) in that they had not called for the household policy that the Claimant had and had failed to consider any policies which might have been available to the Claimant under any bank accounts, credit cards, travel insurance, etc. When the Claimant visited Irwin Mitchell he had not been asked for, nor did he produce, any such documents. The Claimant’s solicitor had said in cross examination that she had relied on her articulate client to be able to advise her as to whether there was Legal Expenses Insurance attached to the household policy. The Claimant was an articulate and educated man whose professional work equipped him better than most people to evaluate advice that he was given and decide whether or not he had any existing policies in addition to the DAS policy. The nature of the claim was such that Legal Expenses Insurance would have had to have provided very substantial cover for costs and disbursements. In the Judgment of the Court the Claimant’s solicitor was entitled to accept the statement of her client that he had no such insurance cover.

The discussions had been carried on some 7 months before the CFA was finally signed. It had been submitted by the Defendant that this amounted to non-compliance in that the advice under Regulation 4 should be given either contemporaneously or within a reasonable time prior to the CFA being entered in to. In the Judgment of the Court the Regulations did not specify when the Regulation 4 advice had to be given. There was no breach.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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