High Court rejects bid to recover assessment costs from Claimant firm with QOCS protection!
This was an appeal by the Scout Association (“the Appellant”) against an order of Costs Judge Leonard (“the Costs Judge”). The Costs Judge refused to make an order under section 51(3) of the Senior Courts Act 1981 against Bolt Burdon Kemp (“BBK”) who were involved as the solicitors of the Claimant.
The background was that there was an action by a person referred to as PME (“the Claimant”) against the Appellant in which the Claimant had the benefit of Qualified One-Way Costs Shifting (“QOCS”). The action was settled for an agreed sum of £29,500 plus costs. BBK refused to accept an offer of costs of £22,500. There followed various applications in which BBK, as it was entitled to do, used the name of the Claimant to seek to recover higher costs from the Appellant.
The Appellant was found unsuccessful on each application. No costs were payable by the Claimant due to the protections afforded by QOCS. The Appellant sought a non-party costs order (NCPO) against BBK, attempting to argue that BBK was a real party or the real party in these applications, with the consequence that it ought to be responsible under section 51(3) of the Senior Courts Act 1981.
The application was refused by Costs Judge Leonard, who ruled that it would not be “just or consistent with established authority” to make such an order, otherwise applications for NCPOs against solicitors acting under a CFA or CFA lite would likely become commonplace. BBK was acting for the Claimant under a capped CFA, not dissimilar to a CFA lite.
The decision was upheld by Mr Justice Freedman in finding that, as BBK had acted in line with the scheme for CFAs, it could not be held liable for the costs that were owed. The judge added that the fact that BBK stood to financially benefit from the success of litigation “does not mean that the solicitors have acted in some way beyond or outside their role as a solicitor” and that even if adverse costs orders were made as a result of a solicitor’s efforts to maximise costs recovery, it did not follow that the solicitor should pay instead.
This was an important decision which provides crucial protection to solicitor firms offering CFA funding. It ensures that these firms can continue to operate and represent Claimant’s who have suffered serious injury, without fear of falling foul of NCPOs for conducting claims on favourable CFA terms.
It is fundamentally Claimant’s who stand to benefit from this decision by not having their access to justice limited due to hindering firms willingness to act for them under these agreements.
Scout Association v Bolt Burdon Kemp
Elliot Brook-Farrell, Legal Costs Consultant
04.01.2024