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Telephone Hearing Injustice - Senior Courts Costs Office

Re: Telephone Hearing Injustice - Senior Courts Costs Office

Postby Denning » Sat Mar 14, 2015 8:20 pm

dls wrote:
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.

Would your statement be the same if the Solicitor was aware of the past negative advice before taking up the case and accepted a retainership on the basis of total costs fixed fee for the legal work to be professionally done and submitted to the ECHR?
dls wrote: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.

According to the papers I have seen there could be an arguable case of fraud by false representation against the solicitor on grounds that he made a statement of truth in his Acknowledgment of Service in the JR proceedings that he actually completed the prescribed ECHR forms for the LiP whereas before the Legal Ombudsman and the SCCO he only stated he spent hours in meeting with the LiP.

The crucial issue that should be considered is whether the courts or the Ombudsman is justified to determine the case on the basis of the several hours purportedly spent by the solicitor with no recourse on the agreement reached between the parties on a total costs fixed fee agreement to advance the case to the ECHR.
dls wrote: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.

In respect of this LiP, the information I have seen demonstrated that there was no written statement or advice presented by the Solicitor to the LiP at the material time while he was unable to do the legal work before according to the LiP he had to prepare the work himself and sent to the ECHR. From the documents he orally told the LiP that he changed his mind.
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Re: Telephone Hearing Injustice - Senior Courts Costs Office

Postby Slartibartfast » Sat Mar 14, 2015 9:12 pm

Denning wrote:The crucial issue that should be considered is whether the courts or the Ombudsman is justified to determine the case on the basis of the several hours purportedly spent by the solicitor with no recourse on the agreement reached between the parties on a total costs fixed fee agreement to advance the case to the ECHR.


As I said previously, this seems to be a simple matter of contract. Suppose that the unlucky Mr Haddock takes up Glow-Worm's Fixed-Price repair offer* and pays his £260. The engineer attends and works on the boiler for several days, but is unable to repair it. Does Mr Haddock now get his £260 back, or can Glow-Worm set it against their labour costs? The answer will be in the contract, and if it is unclear then a judge will decide it.

I looked at the Solicitors Act 1974, and I could see no provision which bars a dissatisfied customer from bringing a civil claim through the conventional route. Perhaps dls or Att could clarify? Is Den's friend prohibited from seeking a refund via MCOL?

(*http://www.glow-worm.co.uk/homeowner/support/repairs/index.en_gb.html)
(NB - purely an example, without any criticism towards this fine and reputable British company)
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Re: Telephone Hearing Injustice - Senior Courts Costs Office

Postby Smouldering Stoat » Sat Mar 14, 2015 9:36 pm

Maybe he could have done so, but surely not now? Res Judicata, innit?

It sounds to me like the OP's friend has had a lucky escape. It's a good job his Solicitor called a halt to his hopeless case before he was exposed to the other side's costs as well. And his suggestion of a telephone hearing was inspired - saving his former client a small fortune at a time when others might have milked it for all it's worth. I suggest the client sends him a case of champagne in recognition of a job well done.
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Re: Telephone Hearing Injustice - Senior Courts Costs Office

Postby atticus » Sat Mar 14, 2015 10:14 pm

I have mentioned the relevance of the terms of the retainer.
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Re: Telephone Hearing Injustice - Senior Courts Costs Office

Postby Slartibartfast » Sat Mar 14, 2015 10:17 pm

Smouldering Stoat wrote:Maybe he could have done so, but surely not now? Res Judicata, innit?

It sounds to me like the OP's friend has had a lucky escape. It's a good job his Solicitor called a halt to his hopeless case before he was exposed to the other side's costs as well. And his suggestion of a telephone hearing was inspired - saving his former client a small fortune at a time when others might have milked it for all it's worth. I suggest the client sends him a case of champagne in recognition of a job well done.


Good points, well made. The client has had the matter heard (albeit by a convoluted route) and he cannot re-litigate the same dispute now in the hope of getting a different answer. I just thought that if the circumstances were as plain as Denny says, MCOL might have been easier.
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Re: Telephone Hearing Injustice - Senior Courts Costs Office

Postby Smouldering Stoat » Sat Mar 14, 2015 11:11 pm

I don't disagree.
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Re: Telephone Hearing Injustice - Senior Courts Costs Office

Postby Denning » Sun Mar 15, 2015 12:36 am

atticus wrote: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.

LiP instructed solicitor to professionally advance his application to ECHR against the United Kingdom, for failure of the domestic courts to protect his Articles 6, 8, 10 and/or 14 convention rights. The elements of the legal work includes and payment:

1. The completion of the prescribed application form of the ECHR on the basis that the domestic courts failed adequately to protect LiP Articles 6, 8, 10 and/or 14 convention rights when the rights are considered independently and/or in combination.

2. The completion of the ECHR Authority Form in accordance with Rule 36 of the Rules of the ECHR.

3. The preparation of Witness Statement to support the ECHR application.

4. The total costs agreed for the legal work to be completed in full was a fixed fee of £X.XX including VAT.

I do not understand your comments as to "your guy's earlier attempts not to pay". The LiP paid the total costs of the agreed fixed fee upfront.
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Re: Telephone Hearing Injustice - Senior Courts Costs Office

Postby Denning » Sun Mar 15, 2015 12:58 am

Slartibartfast wrote:
Denning wrote:The crucial issue that should be considered is whether the courts or the Ombudsman is justified to determine the case on the basis of the several hours purportedly spent by the solicitor with no recourse on the agreement reached between the parties on a total costs fixed fee agreement to advance the case to the ECHR.


As I said previously, this seems to be a simple matter of contract. Suppose that the unlucky Mr Haddock takes up Glow-Worm's Fixed-Price repair offer* and pays his £260. The engineer attends and works on the boiler for several days, but is unable to repair it. Does Mr Haddock now get his £260 back, or can Glow-Worm set it against their labour costs? The answer will be in the contract, and if it is unclear then a judge will decide it.

I looked at the Solicitors Act 1974, and I could see no provision which bars a dissatisfied customer from bringing a civil claim through the conventional route. Perhaps dls or Att could clarify? Is Den's friend prohibited from seeking a refund via MCOL?

(*http://www.glow-worm.co.uk/homeowner/support/repairs/index.en_gb.html)
(NB - purely an example, without any criticism towards this fine and reputable British company)

As I said earlier the idea is good. But a Solicitor is a regulated profession in England in which a parliamentary act has been put in place to decide on any issue relating to the client bill. Its like someone trying to fight employment claims through the MCOL or the County Court. The Court will simply refer the person to the SCCO. The SCCO has full powers of the court and regarded as part of the High Court.

Looking at your example you gave. You may want to consider a full car alignment so as to know which to do. Some garages will charge you for inspection but a number of Kwik-Fit garages will not charge you for the same work and you are under no obligation to use their service yet you would be provided with full diagnosis of the car.

Another example: you bought a Holiday Package to travel on a certain date which included full insurance cover starting two days before your trip. A day before your trip the company said they cannot meet the commitment anymore. Despite the company paid for administrative overhead, insurance, etc it is not your concern. As they have refused to meet their agreement the minimum they must do is to refund your money in full as you have the detriment of a higher fee and arrangement to use alternative source for your holiday arrangement.
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Re: Telephone Hearing Injustice - Senior Courts Costs Office

Postby atticus » Sun Mar 15, 2015 8:01 am

The Senior Courts Costs Office is a part of the High Court.
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Re: Telephone Hearing Injustice - Senior Courts Costs Office

Postby dls » Sun Mar 15, 2015 8:35 am

Would your statement be the same if the Solicitor was aware of the past negative advice before taking up the case and accepted a retainership on the basis of total costs fixed fee for the legal work to be professionally done and submitted to the ECHR?


It may well be. A client comes and says, look there is this adverse opinion, but please look at it again and take it forward if you can.
The solicitor says 'Yes, but we have to have a fee arrangement in place for the stage up to issue, and capped if you wish'

He takes a look at it - does the work - explores perhaps what might be a weakness of two in the advice, but comes to be persuaded that the client's hopes are without virtue. Is he at that point to be criticised for giving his client honest advice. Is he to be criticised for listening to a client facing an uphill struggle and seeing on his behalf whether the climb was in fact too steep?
Having done those two things, should he not be paid?
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