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Telephone Hearing Injustice - Senior Courts Costs Office

Re: Telephone Hearing Injustice - Senior Courts Costs Office

Postby atticus » Sun Mar 15, 2015 8:46 am

And these are questions that ding's bloke has explored fully in his attempts to get his money back and thus get out of paying.
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Re: Telephone Hearing Injustice - Senior Courts Costs Office

Postby Slartibartfast » Sun Mar 15, 2015 10:25 am

I think it may be unfair to characterise the client as trying to 'get out of paying'. It seems quite likely that the client believed he was purchasing the completion of a specific result (a claim lodged with ECHR), and therefore he is entitled to a refund if this is not provided. Conversely, the solicitor believes the agreement was only for him to advance the ECHR claim as far appropriate in his professional judgement.

Clearly they cannot both be right. And if there is any lack of clarity about the terms agreed then the fault lays with the professional. A lay consumer cannot be expected to anticipate all the possible hiccups and problems, so the professional should explain clearly and record what was agreed.

Secondly, the solicitor in this case has decided to impose his own judgement above that of his client. We might say "Hurrah, he has saved a fool from embarking on a costly, pointless journey" but the other side is that this is outrageously paternalistic. Compare for example with the recent landmark Supreme Court judgement "Montgomery v Lanarkshire Health Board" -

81. The social and legal developments which we have mentioned point away from a model of the relationship between the doctor and the patient based upon medical paternalism. They also point away from a model based upon a view of the patient as being entirely dependent on information provided by the doctor. What they point towards is an approach to the law which, instead of treating patients as placing themselves in the hands of their doctors (and then being prone to sue their doctors in the event of a disappointing outcome), treats them so far as possible as adults who are capable of understanding that medical treatment is uncertain of success and may involve risks, accepting responsibility for the taking of risks affecting their own lives, and living with the consequences of their choices. (http://www.bailii.org/uk/cases/UKSC/2015/11.html)

The key point being that it is not the professional who decides on their own judgement what is "worth the risk", but rather the client. If the professional has not given sufficient information, has not ensured clear, recorded and agreed arrangements for contingencies, then the blame falls upon them.
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Re: Telephone Hearing Injustice - Senior Courts Costs Office

Postby Slartibartfast » Sun Mar 15, 2015 11:40 am

93. As a general rule, when a client retains a solicitor for a particular purpose there is an entire contract, ie the solicitor contracts to finish the business for which he has been retained: see Romer v Haslam [1893] 2 QB 286 at 301 where Kay LJ said:

"If a solicitor is retained in a civil action (it is immaterial whether it be an action at law or in equity), prima facie his contract is entire; it is a contract to carry the matter through to a conclusion. The result of this is that he has no right under the statute to send in his bill and insist upon payment until the conclusion of the business to conduct which he was retained."

94. The matter was further considered in Underwood Son & Piper v Lewis [1894] 2 QB 306 CA, where Lord Esher MR stated:

"When a man goes to a solicitor and instructs him for the purpose of bringing or defending such an action, he does not mean to employ the solicitor to take one step and then give him fresh instructions to take another step and so on; he instructs the solicitor as a skilled person to act for him in the action, to take all the necessary steps into and to carry it on until the end. If the meaning of the retainer is that the solicitor is to carry on the action till the end, it necessarily follows that the action of a solicitor is an entire contract – that is a contract to take all the steps which are necessary to bring the action to a conclusion."

I do not propose to go through all the cases cited but it seems to me that from time downwards it has been held that a solicitor cannot sue for his costs until his contract has been entirely fulfilled, unless the case is brought within some recognised exception to the general rule."

97. Given my finding that this retainer was an entire contract to deal with Ms Helvadjian's appeals, including the appeal against the Compston order, it follows that Ambrose Appelbe, having failed to carry out her instructions, are not in a position to require her to pay their costs.


http://www.bailii.org/ew/cases/EWHC/Cos ... 90133.html
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Re: Telephone Hearing Injustice - Senior Courts Costs Office

Postby atticus » Sun Mar 15, 2015 1:18 pm

Ding has still not clariied the terms of the retainer. It is common nowadays for these to be very detailed, not least to curtail the effect of those 120 year old cases.
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Re: Telephone Hearing Injustice - Senior Courts Costs Office

Postby Slartibartfast » Mon Mar 16, 2015 12:18 am

We appear to have three options :

A - The client knowingly signed-up to terms which allowed the solicitor to claim payment for his best endeavours (rather than for delivery of an agreed outcome) and is now wretchedly trying to wriggle out of his obligations.

B - The client did not realise those terms were in the contract, and genuinely believed he had 'purchased' the preparation and lodging of an ECHR case. In that case, both the solicitor and the client are fools for failing to make a clear agreement.

C - The client gave explicit "lodge my case" instructions and the solicitor accepted the work on those terms. The solicitor has now decided that the client's wishes should be disregarded, but has improperly chosen to keep the money nonetheless.

Without seeing the written terms agreed, we cannot know. It seems that a costs judge has made findings toward the A-B range, and has found no basis for C.
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Re: Telephone Hearing Injustice - Senior Courts Costs Office

Postby Denning » Mon Mar 16, 2015 12:28 am

Slartibartfast wrote:I think it may be unfair to characterise the client as trying to 'get out of paying'. It seems quite likely that the client believed he was purchasing the completion of a specific result (a claim lodged with ECHR), and therefore he is entitled to a refund if this is not provided. Conversely, the solicitor believes the agreement was only for him to advance the ECHR claim as far appropriate in his professional judgement.

Clearly they cannot both be right. And if there is any lack of clarity about the terms agreed then the fault lays with the professional. A lay consumer cannot be expected to anticipate all the possible hiccups and problems, so the professional should explain clearly and record what was agreed.

Secondly, the solicitor in this case has decided to impose his own judgement above that of his client. We might say "Hurrah, he has saved a fool from embarking on a costly, pointless journey" but the other side is that this is outrageously paternalistic. Compare for example with the recent landmark Supreme Court judgement "Montgomery v Lanarkshire Health Board" -

81. The social and legal developments which we have mentioned point away from a model of the relationship between the doctor and the patient based upon medical paternalism. They also point away from a model based upon a view of the patient as being entirely dependent on information provided by the doctor. What they point towards is an approach to the law which, instead of treating patients as placing themselves in the hands of their doctors (and then being prone to sue their doctors in the event of a disappointing outcome), treats them so far as possible as adults who are capable of understanding that medical treatment is uncertain of success and may involve risks, accepting responsibility for the taking of risks affecting their own lives, and living with the consequences of their choices. (http://www.bailii.org/uk/cases/UKSC/2015/11.html)

The key point being that it is not the professional who decides on their own judgement what is "worth the risk", but rather the client. If the professional has not given sufficient information, has not ensured clear, recorded and agreed arrangements for contingencies, then the blame falls upon them.

This opinion ties in with my opinion that there was injustice (unfairness) in the present case. I noted in my previous post that there could be arguable case of fraud by false misrepresentation against the Solicitor as the Acknowledgement of Service submitted, with a statement of truth, by the Solicitor in the JR proceedings stated that he actually completed the prescribed ECHR application form for the LiP. Whereas the Solicitor never made this statement that he actually completed the prescribed ECHR form in his submission to the Legal Ombudsman that first treated the service complaint and the recent submission before the SCCO after the JR proceedings.



atticus, I provided in response to your query on page two of this thread what I conceived to be the terms of the retainership from the contemporaneous correspondences between the LiP and the Solicitor as there was no client care letter. I have also seen as part of the documentations two lawyers the LiP contacted previously who wanted to do the legal work for him but they all responded to him that the time left to do the work was too soon for them to be able to commit themselves to accept to do the work and complete it before the due deadline set by the ECHR.

From the evidence I have seen, this solicitor in question accepted to do the legal work about six calendar days (effectively three working days because of holidays) before the deadline to submit the application to the ECHR and payment was received by the solicitors fully within 90mins. Less than 48 hours upon which the application must be lodged at the ECHR or alternatively in accordance with the ECHR rules proof of postage to that effect, the LiP stated that the Solicitor informed him that he changed his mind and would no longer do the legal work anymore.
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Re: Telephone Hearing Injustice - Senior Courts Costs Office

Postby Denning » Mon Mar 16, 2015 12:56 am

Slartibartfast wrote:We appear to have three options :

A - The client knowingly signed-up to terms which allowed the solicitor to claim payment for his best endeavours (rather than for delivery of an agreed outcome) and is now wretchedly trying to wriggle out of his obligations.

B - The client did not realise those terms were in the contract, and genuinely believed he had 'purchased' the preparation and lodging of an ECHR case. In that case, both the solicitor and the client are fools for failing to make a clear agreement.

C - The client gave explicit "lodge my case" instructions and the solicitor accepted the work on those terms. The solicitor has now decided that the client's wishes should be disregarded, but has improperly chosen to keep the money nonetheless.

Without seeing the written terms agreed, we cannot know. It seems that a costs judge has made findings toward the A-B range, and has found no basis for C.

I think option C is applicable in this case from the correspondence of the Solicitor's staff to the Solicitor as well as from the contemporaneous communication sent to the Solicitor by the LiP which clearly indicated the instruction.

From the Order of the Costs Judge, the Part 8 Claim was dismissed on the following grounds:
1. The LiP was unable to show special circumstances in accordance with section 70(3) of the Solicitors Act 1974.

2. The fee was an agreed fee between the parties, and the Defendant spent [several] hours on it.

3. Since the Legal Ombudsman already dismissed the claimant's claim that the Defendant did not provide adequate service and that the Legal Ombudsman decision had been affirmed by the JR proceedings it was a disproportionate use of the court's resources and generally in breach of the overriding objective.
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Re: Telephone Hearing Injustice - Senior Courts Costs Office

Postby Slartibartfast » Mon Mar 16, 2015 1:07 am

Denning wrote:From the evidence I have seen, this solicitor in question accepted to do the legal work about six calendar days (effectively three working days because of holidays) before the deadline to submit the application to the ECHR and payment was received by the solicitors fully within 90mins. Less than 48 hours upon which the application must be lodged at the ECHR or alternatively in accordance with the ECHR rules proof of postage to that effect, the LiP stated that the Solicitor informed him that he changed his mind and would no longer do the legal work anymore.


And I have to agree that this seems morally shabby. The client presumably understood his chances of success at ECHR were thin, but he nonetheless wanted to pursue his case as far as it would go. Because it was urgent, and it had to be done right, he placed this work with a solicitor and paid a hefty fee for that service.

I think it is wrong for a solicitor in that situation to say "I have decided not to act upon your instructions, because in my opinion your case is very weak". I think it is especially wrong to do so at the last moment, knowing that the client cannot now meet the submission deadline.

Morally, the solicitor should have prepared the case until it was ready for submission, and then had a further discussion with the client about whether to proceed. The client can then say either "I would rather try my chances than spend the rest of my life wondering - please submit the case" or "I accept your advice, I'm going to forget about this and get on with my life".
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Re: Telephone Hearing Injustice - Senior Courts Costs Office

Postby atticus » Mon Mar 16, 2015 7:49 am

I may sound like a broken record, but one thing is missing from this discussion: the terms of the retainer*.

In all cases - ALL CASES - start by understanding the parties' obligations to each other. Rights and entitlements can then be measured against those obligations.


* I know that ding has said what he conceives those terms to be.
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Re: Telephone Hearing Injustice - Senior Courts Costs Office

Postby Slartibartfast » Mon Mar 16, 2015 8:16 am

I am of course expressing my view on the sole basis of the information provided by Den. He may be mistaken in his understanding. But that is the situation with every new topic - we can only work with what we have.

I agree that the crux is to understand the parties' obligations to each other, what exactly was agreed between them. There is clearly a perception gap here. Den describes a situation which could not be considered right, but a costs judge reached a different view.
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