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Telephone Hearing Injustice - Senior Courts Costs Office

Telephone Hearing Injustice - Senior Courts Costs Office

Postby Denning » Sat Mar 14, 2015 12:59 am

This is a hot story and I have seen copies of the documents. I will narrate the events as briefly as I can and focus on the relevant parties.

A Litigant in person (LiP) had a total fixed fee costs agreement with a Solicitor to professionally advance his case to the ECHR by a certain date so that he could have a chance of meeting the stringent eligibility criteria. A day before the certain date the Solicitor informed the LiP that he changed his mind as a result of past negative opinion made by Counsel through another firm of Solicitors on the LiP prospect of success and would no longer do the legal work anymore. The LiP then requested his full money back.

The Solicitor then wrote the LiP that he would not return the money back that he spent some hours already on the work and if he had to charge him hourly rate then the money the LiP paid to him under the total costs fixed fee was not sufficient. The LiP requested refunds as the legal work was not done since he never agreed hourly rate with the Solicitor but on total costs for the work to be done in the prescribed manner and lodged at the ECHR with a fixed fee total costs that was fully paid upfront by him. The LiP then requested the Solicitor to provide him where he could go to complaint since he has refused to return back his money.

The Solicitor refused to provide the LiP where to complaint even in the belated Client Care Letter the solicitor quickly produced after the event did not direct the LiP to where to complaint, and the Solicitor informed the LiP never to contact his firm any more. The LiP then contacted the Solicitors Regulation Authority who in turn suggested to the LiP to make a complaint to the Legal Ombudsman. The LiP then submitted his complaint to the Legal Ombudsman.

The Legal Ombudsman Investigator appeared never to have given the LiP an opportunity to see the evidence submitted by the Solicitor as the Investigator's dismissed the complaint of the LiP the same day the Solicitor submitted his response and evidence on the basis that there was evidence that the Solicitor spent some hours at a meeting with the LiP and as such the service was reasonable. The Investigator recommended to the LiP to seek assessment of the bill at the Senior Courts Costs Office (SCCO) as the Legal Ombudsman does not involve itself in forensic analysis of the bill. The said bill was an email attachment of the invoice. The attached email Invoice itself does not have the address of the Solicitor.

The LiP requested an Ombudsman's decision on the basis that the Investigator did not look at the basis of the retainership which was a total costs fixed fee agreement on the completion of the legal work and to lodge the application at the ECHR at a certain date which no iota of work output was received from the solicitor. Also that the Investigator never allowed him to comment on the submission of the Solicitor. The Ombudsman upheld the Investigator's report which was based on hourly basis rather than the total costs of the fixed fee agreement.

The LiP rejected the Ombudsman's decision. The Legal Ombudsman wrote the LiP that it was opened to him to seek Judicial Review to reverse the decision of the Ombudsman and at the same time to seek assessment of the bill at the SCCO.

The LiP then applied to the SCCO within one year for the bill to be assessed under s70 of the Solicitor's Act 1974. A Cost Judge then promulgated a 30 minutes directions hearing. The solicitor then made a counter claim requesting for a telephone hearing, strike out of the LiP claim and that a civil restrain order against the LiP since he already made Judicial Review proceedings and as such a vexatious litigant. The Costs Judge then superseded his earlier decision by a new order for a telephone hearing. The LiP pleaded that that he does not want Telephone Hearing because of his fundamental rights at stake.

From the printed summary notes of the LiP as per what occurred at the Telephone Hearing he made the following statement:
1. The Cost Judge said that he ordered the telephone hearing on grounds of proportionality since the Solicitor asserted that it would cost him so much to travel to the SCCO office in London where the hearing at been slated. So the overriding objective is for the hearing to be heard through Telephone.

2. That he would not be ordering a detailed assessment because the LiP has not applied within one month. That it is his discretion to ordered detailed assessment beyond one month and less than one year, and that he would not exercise his discretion on ground that the LiP would not be able to pay up to £6,000 should the Solicitor win the case since the LiP got fee remission of a lowly £50 to issue the claim. Furthermore, even if he finds exceptional ground which he could not that the overriding objective his for him to refuse to order detailed assessment which is under his wide discretion. In addition that the LiP has had the opportunity for his case to be seen by the Legal Ombudsman and through Judicial Review Proceedings which were rejected.

4. Then awarded the Solicitor his costs of about £800 which amounted to about 60% of the actual solicitors request.

5. Then refused the LiP permission to appeal.

I would welcome gracious ideas and opinions.
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Re: Telephone Hearing Injustice - Senior Courts Costs Office

Postby Slartibartfast » Sat Mar 14, 2015 8:51 am

This seems a terribly complicated route. Forgive my ignorance, but would it perhaps have been easier for the LIP to pursue this through conventional "goods and services" civil law?

At the heart of it, it is simply a dispute about the terms of a consumer contract. The LIP interprets the contractual arrangement as "I will get a case filed at ECHR, or a full refund", and the lawyer interprets it differently. That seems to be a very ordinary situation, which might normally be resolved through the small claim track.

For example, Mr Haddock takes his misfiring car into the garage. They test, dismantle and inspect, then tell him it requires a new engine. That would not be economic, so Mr Haddock does not authorise the work. When he goes to collect the car, he cannot take it away until he pays a £900 bill for 10 hours of diagnostic work. Mr Haddock says he shouldn't have had to pay anything unless the problem has been repaired, he wants his money back. The garage says they carried out necessary work and they're entitled to be paid for it.

Is there some reason why your LIP friend could not just sue for a refund, as Mr Haddock might?
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Re: Telephone Hearing Injustice - Senior Courts Costs Office

Postby atticus » Sat Mar 14, 2015 11:31 am

I am struggling to identify (graciously) the exact complaint here. It seems to me that by asking for an assessment of the costs, the person in question has accepted that there is something to be paid, so the issue concerned not whether anything should be paid but the amount to be paid.

Further, if the hearing had been in person, the solicitor might have sought and been awarded costs of attendance.

Lastly, the fee charged has been reduced.
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Re: Telephone Hearing Injustice - Senior Courts Costs Office

Postby dls » Sat Mar 14, 2015 12:08 pm

And to be honest the costs judge seems to have been considerate and fair.

I agree, we may need some assistance on just what seems to have gone wrong.
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Re: Telephone Hearing Injustice - Senior Courts Costs Office

Postby Denning » Sat Mar 14, 2015 6:25 pm

Slartibartfast wrote:This seems a terribly complicated route. Forgive my ignorance, but would it perhaps have been easier for the LIP to pursue this through conventional "goods and services" civil law?

At the heart of it, it is simply a dispute about the terms of a consumer contract. The LIP interprets the contractual arrangement as "I will get a case filed at ECHR, or a full refund", and the lawyer interprets it differently. That seems to be a very ordinary situation, which might normally be resolved through the small claim track.

For example, Mr Haddock takes his misfiring car into the garage. They test, dismantle and inspect, then tell him it requires a new engine. That would not be economic, so Mr Haddock does not authorise the work. When he goes to collect the car, he cannot take it away until he pays a £900 bill for 10 hours of diagnostic work. Mr Haddock says he shouldn't have had to pay anything unless the problem has been repaired, he wants his money back. The garage says they carried out necessary work and they're entitled to be paid for it.

Is there some reason why your LIP friend could not just sue for a refund, as Mr Haddock might?

I think looking at it as "goods and services civil law matter could be a good idea. But the difficulty here is how would the County Court be able to have jurisdiction in a matter that falls under Section 70 of the Solicitors Act 1974?
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Re: Telephone Hearing Injustice - Senior Courts Costs Office

Postby atticus » Sat Mar 14, 2015 6:34 pm

The matter is governed by the Solicitors Act.
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Re: Telephone Hearing Injustice - Senior Courts Costs Office

Postby dls » Sat Mar 14, 2015 6:38 pm

A Litigant in person (LiP) had a total fixed fee costs agreement with a Solicitor to professionally advance his case to the ECHR by a certain date so that he could have a chance of meeting the stringent eligibility criteria. A day before the certain date the Solicitor informed the LiP that he changed his mind as a result of past negative opinion made by Counsel through another firm of Solicitors on the LiP prospect of success and would no longer do the legal work anymore. The LiP then requested his full money back.


I have to say that while the solicitor's action may be open to question and the result unfortnate, if on looking into the case he concludes that there is none, then he acted correctly in declining to present a case. He has a professional obligation not to present a case to a court which he believes is ill founded.

Cases develop and facts become more clear, and legal research provides a developing understanding of the law. A lawyer who manages to complete a case of any significance without learning more is not doing his job right.

Please note that he was not an LiP. He was represented. He asked someone to do work for him. He did it. He should be paid. Not perhaps as much as he wanted, and subject to proper criticism where appropriate, but not according to a rather fond view of the world.

here are times when a litigant wishes to persist with a case which the lawyer has no faith in (or worse). A lawyer's job is to neither believe nor disbelieve his client's version of the facts, but he has a clear duty to present a case only according to the law as he understands it.

As Atti says this is a matter covered by the Solicitors Act and by the appropriate regulations.
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Re: Telephone Hearing Injustice - Senior Courts Costs Office

Postby Denning » Sat Mar 14, 2015 6:48 pm

atticus wrote:I am struggling to identify (graciously) the exact complaint here. It seems to me that by asking for an assessment of the costs, the person in question has accepted that there is something to be paid, so the issue concerned not whether anything should be paid but the amount to be paid.

Further, if the hearing had been in person, the solicitor might have sought and been awarded costs of attendance.

Lastly, the fee charged has been reduced.

The complaint as I understand it is that the Solicitor terminated the terms of the retainer between the LiP and the Solicitor, and if so was the Solicitor action justified in law?

The amount to be paid could be reduced to £0.00.

The Solicitor is entitled to its costs of attendance as well as the LiP. The issue appeared that the Costs Judge took into consideration irrelevant matters (Legal Ombudsman and JR) in his decision in trying to find special circumstance to order detailed assessment? The Defence I have seen from the Solicitor did not dispute the LiP for his bill to be assessed but requested for the claim to be struck out for it being more than one year.
dls wrote:And to be honest the costs judge seems to have been considerate and fair.

I agree, we may need some assistance on just what seems to have gone wrong.

But why ordered costs when the Judge believes the LiP cannot pay the about £6,000 if ordered detailed assessment?
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Re: Telephone Hearing Injustice - Senior Courts Costs Office

Postby atticus » Sat Mar 14, 2015 6:51 pm

The terms of the retainer are (a) relevant, (b) not stated, (c) possibly already considered in your guy's earlier attempts not to pay.

Inability to pay is not a reason not to assess the costs.
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Re: Telephone Hearing Injustice - Senior Courts Costs Office

Postby Smouldering Stoat » Sat Mar 14, 2015 7:24 pm

Surely the Solicitor can't be required to do something which he is under a professional obligation not to do?
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