Turner v Coupland Cavendish Limited – “a moving target” and “a transparently disproportionate approach to a detailed assessment”
The defendant, Coupland Cavendish Limited Solicitors, delivered to the claimant a bill for services rendered and the claimant commenced part 8 proceedings seeking an order for assessment pursuant to s70 of the Solicitors Act 1974.
The application was commenced within one month and therefore there was an automatic entitlement to assessment and an order for assessment was made on 17 February 2023 and directions laid down for a breakdown of costs to be served and for, “an electronic copy of the defendant’s file to be provided”.
The defendant subsequently served the breakdown and the electronic file. The claimant filed points of dispute maintaining that the disclosure provided had not been adequate. In this regard, the claimant contended that, “recent case law” required a level of detail to be incorporated into points of dispute which could not be achieved without further disclosure. The defendant maintained that the entire file had been produced as ordered and that neither the points of dispute nor surrounding correspondence had articulated what was alleged to be missing.
The assessment hearing was listed for September 2023, but in advance of this hearing the claimant applied for, inter alia, specific disclosure of telephone recordings and answers to part 18 questions.
In July 2023 Costs Judge Rowley made orders without a hearing setting aside the points of dispute and ordering new points, it being held that, “the defendant’s statement that it had disclosed all of the documents in the file was sufficient for the claimant to put forward points of dispute in the expectation that there were no other documents that were to be provided in the detailed assessment hearing. For example, therefore, if time was claimed which did not appear to be supported by any attendance note, then the claimant could proceed on the basis that the time was either estimated or that the time had only been recorded on a computerised time recording system rather than any separate, detailed note”.
The further points of dispute were duly served and it became apparent that the claimant would not relax his stance in relation to either disclosure of part 18 replies and accordingly a hearing of preliminary issues was required.
The issues:
- The claimant application for disclosure of the defendant’s telephonic call recordings with the claimant, and,
- The claimant’s application for answers to part 18 requests pertaining to commission in respect of the ATEI.
In relation to 1, the claimant advanced several arguments as to why the claimant was entitled to the recordings. Essentially, it was maintained that CPR part 31 applied and accordingly the defendant had an obligation to disclose the call recordings. According to the claimant, two issues arose – the calls covered crucial funding conversations and also the recordings would enable a cross reference with time recordings.
The defendant maintained its previous position of disclosure already having been given but went further and argued that the call recordings were not stored on the file and that the application before the court did not extend to documents that were stored elsewhere. Indeed, the exercise was one of fishing and a “moving target” and for the claimant to succeed there must have been compliance with paragraph 5.1 of PD 31A. None of this had occurred in this case.
Costs Judge Rowley found in favour of the defendant. He held, inter alia, that his disclosure order had been complied with and that, in any event, call recordings would not be in the solicitor’s file but, “if anywhere, in some IT backup of perhaps thousands of calls taken by the solicitors over time”. Costs Judge Rowley described the task of locating and listening to the recordings as, “a transparently disproportionate approach to detailed assessment”.
In any event, the application was rejected, there being, “a complete absence of application, draft order or evidence to put this application on a proper specific disclosure footing as well as the failure of the claimant to make out why such documents advance the claimant’s case in the absence of any form of positive statement of the claimant’s position”.
Moving to 2 above, the claimant sought responses to questions raised regarding sums received by the defendant flowing from the ATEI.
The defendant alleged that no application existed and that, in any event, the claimant had not advanced evidence of undisclosed commissions and consequently this exercise was also a fishing expedition.
Costs Judge Rowley had considered this issue previously in the case of Brown v JMW Solicitors and refused to order part 18 replies. He had held that a party must achieve a certain standard of argument before an order could be made and that it was not appropriate to order replies which could then, possibly, enable the argument to be articulated. That was the cart before the horse.
The claimant maintained that Costs Judge Rowley should reach a different conclusion than he did in Brown and in support of this contention reliance was placed upon the decision in Yasuda Fire and Marine Insurance which had not been referred to in Brown.
Costs Judge Rowley rejected the claimant’s submissions that Yasuda provided, “a gateway for a client to be able to see all of the solicitors’ records” and “Absent any positive case by the claimant, the defendant has to be taken to have followed the law as set out in Tankard regarding any declaration of interest in recommending any particular ATE insurance.”
Accordingly, the second strand to the application was also dismissed both procedurally (the requests were not before the court) and also on the basis that the claimant was not entitled to, “wide ranging access to the defendant’s records in the absence of the claimant putting forward a positive case in support of the part 18 requests that have apparently been served”.
Summary
An application for specific disclosure requires full compliance with CPR Part 31 and PD31A, including, inter alia, evidence justifying/supporting the application.
Requests for disclosure must be proportionate, to the point, and supported by evidence as to the document(s) relevance.
In order to compel a party to reply to part 18 questions, the requesting party must put forward a compelling argument in support.
The court does not have locus to order a party to answer part 18 questions which it had not even seen.
How can PIC help?
PIC have extensive knowledge of matters proceeding under the Solicitors Act and regularly act for solicitors whose bills have been questioned by former clients.
Rob Street, Costs Lawyer
27.06.2024