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Hutchings v British Transport Police

22 March 2007
The issues

Part 18 Request – what information paying party is entitled to ask receiving party; CPD 35.7 – costs – CFA – ATE Insurance.

The facts

The Claimant was a Police Sergeant attacked by an aggressive prisoner whilst in the Ebury Bridge Police Station. The Claimant’s case was that he suffered back injuries as a result of the assault. The claim was compromised at a round table meeting in the sum of £82,000.00. The Defendant agreed to pay the Claimant’s costs, to be assessed if not agreed. The claim was funded by a Conditional Fee Agreement providing for a success fee of 75%. The Claimant’s Bill of Costs totalled £23,008.71. The Defendant raised a large number of objections to the Bill in its Points of Dispute and in particular it disputed the entitlement to claim a success fee and the cost of ATE insurance. The Defendant served a Part 18 Request running to 13 questions, asserting that they were aimed at establishing whether or not the Claimant had the benefit of legal expenses insurance and clarifying the relationship between the Claimant’s solicitors and the Claimant’s management company or insurance providers. Of the 13 questions, at the time of the Appeal to the Senior Costs Judge Hurst, the questions had reduced in number. The questions before the Senior Costs Judge on Appeal were therefore:-

1. On the date of the accident was the Claimant insured under any home, buildings and or contents insurance taken by anyone in the household?

2. If so, who were the insurers and what is the policy / role number?

3. Did the policy include legal expenses insurance?

4. If the answer to question 3 was yes, why was it not used?

5. If the answer to question 3 was no, did the Claimant’s solicitors obtain a copy of the policy and read it themselves.

6. If the answer to question 5 was no, how did the Claimant’s solicitors know that the policy did not include legal expenses cover?

CPD section 35, and in particular 35.7, allows a party, who serves Points of Dispute on a receiving party who claims an additional liability, a request for information about other methods of financing costs which were available to the receiving party.

The decision

It was appropriate to give guidance as to how CPD 35.7 should operate in practice. The starting point was the overriding objective and the requirement of proportionality. The Court would not do anything likely to promote further satellite litigation willingly. The paying party however had to be in a position to understand the claim for costs made against it. CPR 44.15 required a party who sought to recover an additional liability to provide information about the funding arrangement to the Court and to other parties. The Practice Direction required a party who had entered into a funding arrangement to give certain information (19.4) and in particular state, where the funding arrangement is an insurance policy, the name and address of the insurer, policy number and the date of the policy and the claims to which it related. What further information might legitimately be requested? If the receiving party had complied with the Practice Direction the paying party ought to have sufficient information as to the policy in respect of which the premium is claimed but this information would not reveal the existence or otherwise of any ATE policy. The receiving party was entitled, to a limited extent, to further information and the questions which the Costs Judge regarded as reasonable and proportionate were:-

1. Did the Claimant have insurance?
2. With whom?
3. Did the Claimant have any legal expenses insurance?

The other questions were disproportionate and not reasonably necessary to enable the paying party to prepare for the detailed assessment. Those matters might of course be raised as part of the Points of Dispute and argued at assessment.

Appeal allowed to that extent.

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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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