Clipston v English - The Accident Group - CFA - Conditional Fee Agreement Regulations 2000 - S. 29 Access to Justice Act 1999 - S. 58 Courts and Legal Services Act 1990 - Liability of Solicitor or Agent - County Court Judgment
On the 20th March last, at the outset of the detailed assessment of the Claimants' bill of costs, I ordered the trial of a preliminary issue. The detail of the issue to be tried can be gleaned from the order itself but it has been narrowed by the agreement of the parties, represented by Mr. Bacon, counsel for the Claimant and Mr. Pilling, costs draftsman for the Defendant (the paying party) to an answer to this question: "Has there been a breach of the Conditional Fee Agreements Regulations 2000 so that the indemnity principle may have been / has been breached?" Specifically, the parties require a decision as to whether or not the provisions of paragraphs 1 (3) and 4 of the Conditional Fee Agreements Regulations 2000 ("CFAR") have been breached by the claimant, or rather by his solicitors. Those regulations provide:
1. Citation, commencement and interpretation (3) In these regulations - "client" includes, except where the context otherwise requires, a person who - (a) has instructed the legal representative to provide the advocacy or litigation services to which the conditional fee agreement relates, or (b) is liable to pay the legal representative's fees in respect of those services; and "legal representative" means the person providing the advocacy or litigation services to which the conditional fee agreement relates.
4. Information to be given before conditional fee agreements made (1) Before a conditional fee agreement is made the legal representative must (a) inform the client about the following matters, and (b) if the client requires any further explanation, advice or other information about any of those matters, provide such further explanation, advice or further information about them as the client may reasonably require. (2) Those matters are - (a) the circumstances in which the client may be liable to pay the costs of the legal representative in accordance with the agreement, (b) the circumstances in which the client may seek assessment of the fees and expenses of the legal representative and the procedure for doing so, (c) whether the legal representative considers that the client's risk of incurring liability for costs in respect of the proceedings to which the agreement relates is insured against under an existing contract of insurance, (d) whether other methods of financing those costs are available, and, if so, how they apply to the client and the proceedings in question, (e) whether the legal representative considers that any particular method, or methods of financing any or all of those costs is appropriate and, if he considers that a contract of insurance is appropriate or recommends a particular such contract - (i) his reasons for doing so, and (ii) whether he has an interest in doing so. (3) Before a conditional fee agreement is made the legal representative must explain its effect to the client. (4) ( not applicable) (5) Information required to be given under paragraph (1) about the matters in paragraph (2) (a) to (d) must be given orally (whether or not it is also Given in writing), but information required to be given about the matters in paragraph (2) (e) and the explanation required by paragraph (3) must be given both orally and in writing (6) (not applicable)
The thrust of the defendant's submission is that the claimant's solicitor failed, as the client's legal representative, to provide to Mr. English the information, and the further explanation, advice or other information, if sought, required by regulation 4. Since compliance with regulation 4 is mandatory, the CFA concluded between the solicitor and Mr. English is unenforceable. There being no liability as between solicitor and client, there is no right to an indemnity for any of Mr. English's costs from the defendant, Mr. Clipston. Mr. Bacon agrees with that statement of principle but contends there has been no want of compliance with regulation 4 as alleged.
Background
This is a yet further aspect of the costs satellite litigation which has become prevalent (some might say all too prevalent) since the implementation of S. 29 of the Access to Justice Act 1999, S. 58 of the Courts and Legal Services Act, 1990 as amended, and the widespread use now of conditional fee agreements in personal injury litigation. Although neither advocate referred me to any consultation documents or reports which preceded the Act, from which one might glean a taste of the debate attending the legislation, my understanding is that in general terms, when extinguishing the right of a potential claimant to legal aid to fund what I will call a "run of the mill" personal injury claim in favour of the relaxation of the rules about conditional fee agreements, Parliament was concerned, amongst other things, to safeguard the rights of the claimant / client and to ensure that he retained the right, in an informed manner, to chose who, and by what financial means his claim should be conducted. The following extract from the Blackwell Report, quoted in extenso by His Honour Judge Grenfell in Presley and Others -v- Suleman and related actions in the Leeds County Court 19th July 2001
Transcript may provide some insight into policy considerations surrounding the enactment of the CFAR:
"We do, however, draw to the attention of the Lord Chancellor our view that claims management companies are of growing importance in the personal injury sector and may pose new issues for policy makers. In particular, the claims management arrangements may impose conditions on whether and how the claim is pursued by the solicitor to whom the client is directed or who the client has chosen. For example, (as with all insured litigation) the claims management package may prescribe the minimum chance of success that must exist before a case can be taken on and the minimum period before proceedings can be issued. That sort of control, coupled with the fact that, through their advertising and user friendly approach, they may well over time acquire a dominant share of the market, must raise issues about whether claims management companies will need to be regulated. The Committee was also concerned that, given the web of arrangements that claims management companies are creating, it may be difficult for consumers to assess their value for money as against competing service providers. The Committee recommends that the Government should keep under review the transparency and value for money of charges made by claims management companies."
How a claimant arrives at the decisions required of him must depend in large measure upon the content and quality of the advice and information he is given. Conversely, I venture to suggest that Parliament was anxious not to restrict potential personal injury claimants' access to justice by the abolition of legal aid. On the contrary, it was alert to establish not only a cost effective (to the consumer) alternative to legal aid, but also to make such access available to as wide a range of claimants as possible and perhaps to include those who previously would not have qualified for legal aid on financial grounds and who were insufficiently well off to fund litigation from their own resources.
Over the past four years or so there have grown up a number of corporate organisations whose business it is to provide a one stop claims service, the claims management companies. One such is the Accident Group ("TAG"), whose predecessors, whether in title or merely in name, appears to have been the Accident Advice Bureau Limited. TAG canvass potential customers via the internet, and in the high street by means of mobile stands. Their website advertises their service as one which helps the victims of accidents to "pursue claims for compensation and manages the entire claim from first call through to final settlement." TAG will only accept and manage claims having a damages value in excess of £1,500 and which are assessed to have a greater than 50% chance of success. No doubt TAG provides a valuable service for its customers. Commercially it appears very successful. In a number of respects, however, defendants' liability insurers, who more often than not pick up the costs bill of the successful claimant have become concerned at the level of certain elements of those costs, particularly in relatively low value claims. They contend that the costs payable are disproportionate to the damages payable and that they reflect ancillary services provided by the management company which have no, or only passing, relevance to the litigation and for which their insured bears no responsibility. Elements of those costs which have caused concern and, of late, have been the subject of judicial scrutiny, both as to enforceability and amount are the success fee and the after the event insurance ("ATE") premium - see Callery -v- Gray -- No.1 [2001] EWCA Civ 1117 and No. 2 -- [2001] ECWA Civ 1246. This claim was pursued under the TAG scheme and after entering into a CFA with the conducting solicitors; the CFA did not provide for a success fee. ATE cover, however, was secured and certain payments were made as part of the TAG "package", the level and purpose of which is, in part, the subject of the defendant's objection.
The claim
13.6.00 - Accident; rear end shunt. Claimant sustained whiplash injury to neck. Liability never in issue. 20.6.01 Medical report 14. 8. 01 Proceedings issued 1.12.01 Consent order - agreed general damages - £2,350; specials - £856 So this was a low value claim; there was never any dispute about liability and it was settled within 18 months of the accident and within 4 months of the issue of proceedings.
The TAG scheme and the claimant's use of it
Among the papers put before the court was a statement from Robert Carter, solicitor for the defendant and the TAG operation manual. These documents provide detail of how the scheme works and how it applied to Mr. English's claim. I had not seen these documents before the hearing. Certainly some reference to them was made during submissions but it is only during the course of preparation of this judgement that I have been able to read them in detail. I trust I have been able properly to understand them and the workings of the scheme. Certainly at first blush it is complex. Its cost effectiveness and its ability to compete in the claims management market undoubtedly lies in the way each step in the procedure is controlled by TAG or its associated companies. That "control" is perhaps best demonstrated by setting out the way in which a typical small value personal injury claim is processed.
1. At the mobile stand the potential claimant completes a TAG application form (detailing the circumstances of the accident, the third party, injuries etc.), and a service agreement / declaration form. This document contains what appears to be a detailed explanation of the scheme and appears also to constitute a proposal for the ATE insurance policy. At this point the claimant is given a copy of the master ATE legal expenses policy underwritten by Lloyds underwriters and managed by their representatives, Legal Protection Limited, again an associate as I understand it, of TAG. It will be immediately apparent that there is no question of the claimant going into the market to obtain the best value ATE policy to suit his needs. The policy provides £25,000 worth of cover for - Opponents costs and disbursements in the event of failure of the claim - Own disbursements and counsel's fees, to the extent they are not recovered against the opponent. - Any deficiency in damages. Put shortly, TAG guarantee that, whatever the shortfall between damages and unrecovered costs and disbursements, the claimant will receive a minimum payment of £500 - The premium payable for the policy, which is set at a figure of £840 inclusive of insurance premium tax and the loan interest payable to the finance house who lend the insurance premium to the claimant under a Consumer Credit Act regulated agreement, again to the extent that such premium is not recovered from the opponent. Since the loan interest is not recoverable anyway, I understand the claimant pays it out of his damages if the claim is successful.
2. If the claim is accepted confirmation of same is sent by letter to the claimant and, if I have understood the procedure correctly, it is at this point that he becomes an insured under the block Legal Protection policy, subject always to later payment of the premium, as to which see under.
3. The case is then passed to TAG's associated company, Accident Investigations Limited ("AIL") whereupon an AIL employee will contact the claimant who completes a detailed questionnaire. AIL then returns the file to TAG with its recommendations on both liability and quantum.
4. If the case has TAG's continued support, the complete file is then passed to their vetting solicitors, Rowe and Cohen, whose task it is to assess whether the case has a better than 50% chance of success and a potential value exceeding £1,500.
5. If Rowe and Cohen "approve" the claim, they will then send the case / file to a firm of panel solicitors. That firm has the ensuing 48 hours in which to accept or reject the referral, in the former case, subject always to the claimant's formal instructions as client of that firm.
6. If the panel solicitor accepts the referral, he must then send to the claimant a CFA and a client care letter, which fulfils the requirements of rule 15 of the Solicitors' Practice Rules. In fact the CFA is constituted by reading together the client care letter and the written "terms and conditions" attached to it, the former incorporating the latter. At the same time, the panel solicitor sends a copy of those documents to TAG. The CFA is concluded between the solicitor and the claimant / client by the latter returning, in due course, to the former a signed copy of the client care letter, although this part of the procedure seems to conflict with what immediately follows.
7. TAG then instructs AIL by one of its employees to make contact with the claimant and to arrange a home visit. It is the task of that person (a) to explain the CFA to the claimant, (b) to obtain his signature to a document entitled "Fact Find and Oral Advice Sheet", (c) to explain to him, and to obtain his signature to, the CCA finance agreement by which the claimant borrows the ATE policy premium from the nominated finance provider - currently First National Bank Plc, formerly and at the time Mr. English entered into the CFA, Investec Bank UK) Limited.
8. It is not entirely clear to me to where those documents are sent once signed by the, by now, panel solicitor's client. I rather think from a reading of p. 20, paras.13,14 and 16 of the manual, that the documents must be sent by the AIL representative to TAG because at this point the case is then "deemed as accepted" and "Evidence of Insurance" is issued. According to para.16 those documents are then sent by TAG to the panel solicitor.
The information, further explanation and advice required of the legal representative Save to remark that there is reference at para. 12 of the "Step by Step Procedures" at p.19 of the operating manual that ..."All staff will be fully trained in explaining this (my emphasis) and in addition the literature which is retained by the prospective client will fully explain the CCA", there is no evidence of the extent of training or qualification of the AIL representative who visits the claimant. The "this" referred to above appears to be the CCA agreement, not the content and effect of the CFA, nor the matters listed in para. 4(2) (a) to (e) of the CFAR. It would be unrealistic to assume a completely untrained employee would visit a claimant but there is simply no evidence of that person's ability to deal with perhaps searching questions about: - How and in what circumstances a claimant might become liable to pay the solicitors' costs - 4.(2)(a) - What circumstances might give rise to a claimant wishing to have the solicitor's costs assessed and how he should go about it - 4.(2)(b) - Whether or not it may be thought an alternative method of financing the litigation would be more appropriate for a claimant and the reasons for recommending a particular insurance contract if it were thought appropriate a claimant should have ATE insurance - 4.(2)(d) and (e)
As to the last of those points, Mr. Bacon suggested that the legal representative, via the AIL employee, was somehow relieved, if asked, of the obligation to advise the claimant about alternative insurance contracts because cover was already in place with Legal Protection Limited by the time of the AIL representative's visit. Indeed, in the "terms and conditions" referred to in the solicitor's client care letter, which constitute the CFA one finds these words at:
"J. Other points (a) and (b) - [these paragraphs reflect the matters set out in sub-paras. (a) and (b) of para. 4(2) of the CFARA] (c) whether we consider that your risk of becoming liable for any costs in these proceedings is insured under an existing contract of insurance. In particular we drew to your attention that you had, prior to our instruction, agreed to purchase a legal expenses insurance policy from Litigation Protection Limited; (d) that you had also agreed to fund the purchase of the legal expenses policy from Litigation Protection Limited by a loan from Investec Bank (UK) Limited (e) having regard to points (c) and (d) above that we were unable to discuss other methods of financing those costs, including private funding, Community Legal Service funding, other legal expenses insurance policies, trade union funding; (f) (i) Having regard to the fact that you appear to be contractually bound to purchase the legal expenses insurance policy referred to in point (d) above from the Accident Advice Bureau Limited, we do not believe it would be appropriate to advise you as to its suitability and you may in these circumstances wish to obtain independent legal advice in this regard. Detailed reasons are set out in Schedule 2. (ii)In any event, we believe it is desirable to insure your opponent's charges and disbursements if you lose. (iii)We confirm that we do not have an interest in maintaining this particular insurance agreement save that we are an approved member of Accident Advice Bureau Solicitors' panel ............
SCHEDULE 2
Having regard to the fact that you appear to be contractually bound to purchase a legal expenses insurance policy, administered by litigation Protection Limited , from the Accident Advice Bureau Limited, we do not believe it would be appropriate for us to advise you as to its suitability and you may in those circumstances wish to obtain independent legal advice in this regard.
In any event, in all the circumstances, and on the information currently available to us, we believe, (sic) that a contract of insurance is appropriate to cover your opponent's charges and disbursements in case you lose.
We are not, however, insurance brokers and cannot give advice on all products which may be available.
I cannot agree with Mr. Bacon. Para. 4 of CFAR is mandatory. I fail to see how the legal representative, in this case Mr. English's solicitors, Mills, Kemp & Brown can avoid their responsibilities to advise about insurance, if asked to do so, simply by saying, in effect, "you already have a policy and we cannot / will not tell you if we think that policy is right for you in relation to your claim, or whether we are aware of other more suitable products." More particularly, there seems to me to be no logical reason for the prior existence of a policy with Legal Protection Limited to absolve the legal representative of the obligation. The obvious points, of course, are: (a) the solicitors are themselves tied into the TAG scheme and they would hardly be likely to advise the claimant to go elsewhere - the conflict of interest point. (b) that if the claimant was advised of an alternative and he were to go elsewhere, unlikely though that may be, the whole scheme would fail.
And that, if I may say so, undermines the solicitors' statement at J (f) (iii) above to the effect that they have no interest in recommending maintenance of the Legal Protection policy. If they were to recommend an alternative which the claimant were to buy, the scheme with TAG / the Accident Advice Bureau would flounder and as likely as not, the solicitors would lose the case and their costs. If it be thought that the "Detailed reasons set out in Schedule 2" provide an explanation of why the legal representative is recommending a particular contract of insurance, or recommending no contract having regard to the existence of the Legal Protection policy, I cannot agree that they do any such thing. The wording of para J (c) to (f) and Schedule 2 of the client care letter leads me to conclude that those who were responsible for establishing the TAG scheme properly anticipated the difficulties presented by para 4 of the CFAR having regard to the provision of ATE insurance to the claimant at the outset and I do not believe that the draftsman of para. J and Schedule 2 has managed to overcome those difficulties.
The Agency Point
This is the issue which lies at the heart of the defendant's objection to the enforceability of the CFA governing Mills Kemp & Brown's relationship with Mr. English and all CFAs entered into by claimants under the TAG umbrella. The panel solicitor has no direct contact with the client before he signs up to the CFA, the ATE policy or the CCA loan agreement. The defendant submits there is no indirect contact either. It is not the solicitor as "legal representative" who provides the explanation / advice (if sought) required by the CFAR, but an anonymous (so far as the solicitor is concerned) individual, whom the solicitor has not instructed directly, about whose expertise the solicitor is entirely ignorant, over whom the solicitor has no control and, arguably, for whom the solicitor has no responsibility.
As to the statutory framework, the starting point is the primary legislation establishing conditional fee agreements, namely s. 58 of the Courts and Legal Service Act 1990 (as amended) ["the Act"] : "(2) For the purposes of this section and section 58A - (a) a conditional fee agreement is an agreement with a person providing advocacy or litigation services which provides for his fees and expenses, or any part of them, to be payable only in specified circumstances; (b) [not applicable] (3) The following conditions are applicable to every conditional fee agreement - (a) it must be in writing (b) it must not relate to proceedings which cannot be the subject of an enforceable conditional fee agreement; (c) it must comply with such requirements (if any) as may be prescribed by the Lord Chancellor" S. 58A(3) provides : "The requirements which the Lord Chancellor may prescribe under section 58 (3) (c) - (a) include requirements for the person providing advocacy or litigation services to have provided prescribed information before the agreement is made; and (b) [not applicable]
Here, of course, there is connection with para.1 (3) of the CFAR where the person "providing advocacy or litigation services" is called the legal representative. There is no definition of 'litigation services' in the regulations, but there is in s. 119 of the Act : "In this Act - [...] "authorised litigator" means any person (including a solicitor) who has a right to conduct litigation granted by an authorised body in accordance with the provisions of this Act; "litigation services" means any services which it would be reasonable to expect a person who is exercising, or contemplating exercising, a right to conduct litigation in relation to any proceedings, or contemplated proceedings, to provide;"
The italics above and below are mine to provide emphasis and / or a connecting link through the legislation. So it is the authorised litigator who is granted a right to conduct litigation by his professional body in accordance with the Act who provides litigation services and who thus is the legal representative. As it seems to me, the legal representative ought to be able and ready to provide any service which it would be reasonable to expect of anyone conducting personal injury litigation, or as here in the case of the AIL employee visiting the potential claimant, contemplating the conduct of personal injury litigation. So the AIL employee ought to be in a position to answer a whole range of questions about the future conduct of his claim which the potential claimant may pose.
Can the AIL employee be said to be the agent of the panel solicitor for this purpose as Mr. Bacon submits he can? First, Mr. Bacon submits that, as a matter of common sense and practicality, the legal representative in this context must mean the solicitor or his firm. I have no difficulty with that. For very many years, solicitors have been able to act for clients in non-contentious business and in contentious business short of in court work (subject to exceptions) through their employees. The concept of the old managing clerk, now the legal executive, having an expertise surpassing that of his employer in a given field of work is, I suggest, well known. But the reason that the legal executive or the paralegal, to use more modern terminology, has that degree of skill and knowledge is because he has received, and I suggest continues to receive, the appropriate training from his employer. Furthermore, he works under the direct supervision and control of the solicitor employer. The solicitor is answerable for his employee's shortcomings and, like any other employer, is vicariously liable for the negligent acts / omissions of the employee. For a number of reasons, Mr. Bacon submits the relationship between the panel solicitor and the AIL employee is no different:
- The client care letter twice makes it clear that the claimant has a right of direct communication with the solicitor. - The last page of the letter establishes that the AIL representative is the solicitor's agent. - The "Fact Find and Oral Advice Sheet" is headed by the rubric, "We, Mills, Kemp & Brown with Hinchliffe Baker, authorise Accident Advice Bureau Limited to orally advise the claimant, George English as detailed below in conjunction (sic) with his accident on 13.6.00"
In my judgement, neither individually, nor collectively do those facts establish the sort of agency which would constitute AIL the 'legal representative' for the purpose of para.1 of CFAR. One necessarily has to look beyond what is written in order to establish the real relationship between the solicitor and AIL. As an aside, I note that Accident Advice Bureau, TAG's predecessor, rather than AIL is the appointee in the Fact Find and Oral Advice Sheet rubric.
- The agreement between the panel solicitor, therein called the Appointed Representative, and AIL, a proforma copy of which is to be found at schedule 4 of the TAG operating manual, submits Mr. Bacon, "establishes the obligation to appoint AIL as the solicitor's agent to undertake the advice duties as legal representative."
I do not think the agreement does any such thing. Certainly it establishes an agency relationship but even if the duties and obligations of the legal representative, as defined in para.4 of the CFAR are delegable, as to which see under, the duties of AIL in the agreement are confined to obtaining details of the claimant, of the accident and of the third party and his insurers and, if considered necessary, to obtaining photographs, witness statements and "locus reports". Specifically, in para.2, "The Appointed Representative hereby appoints AIL as its agent for the purposes of investigating, collating and assessing information regarding Claims passed to AIL by TAG and, in particular, to do so prior to the Appointed Representative commencing to act on behalf of any claimant to enable the Appointed Representative to consider whether he wishes to act on behalf of such Claimant". That then, is the limit of AIL's responsibilities under the agreement and, it follows, the limit of its actual authority. I see no difference between that authority and that of the enquiry agent who is instructed by a solicitor to serve process or interview witnesses and prepare witness statements. Patently, however, the enquiry agents' authority does not extend to the provision of legal advice. I think one is entitled to ask whether it is significant that the defined "Duties of AIL" in clause 1 of the agreement and the authority conferred upon AIL in clause 2 do not include the provision of information and the explanation and / or advice of or about the matters listed in sub-paras. (2) and (3) of para. 4 of the CFAR. Some of that information must be given orally, whether or not it is also given in writing, and some of it must be given both orally and in writing - see sub-para. 5. Did the draftsman understand the difficulties which might flow from such a written bestowal of authority? I rather think he did and therefore he deliberately omitted to go beyond the duties I have repeated from the agreement above.
- The client's remedy is always against the solicitor, not the agent (AIL).
Having now sought to analyse the true nature of the relationship between the solicitor and AIL and having regard to the written limit on the latter's authority, I cannot agree with Mr. Bacon. Moreover, I venture to suggest that the solicitor's professional indemnity insurers may be entitled to avoid policy liability in the event of a claim resulting from any advice tendered by the AIL employee.
- Importance is attached to an exchange of correspondence between TAG and the Lord Chancellor's Department in November 2000.
Alert to the problem arising from AIL representatives undertaking tasks assigned by the regulations to the legal representative, TAG sought guidance from the LCD. If I may say so, and certainly in my experience, this was a somewhat novel way of tackling the problem; I would have thought the better course would have to been to seek counsel's opinion - perhaps that of Leading Counsel. Mr. Bacon repeated point 3.14 made by Mr. Laughland, the draftsman of the claimant's skeleton argument but neither enlarged on the significance of the statement of Ms. Williams in her letter of reply of 29th November when she said, "Although the CFA Regulations require the legal representative to provide certain oral information to the client there is nothing to prevent the legal representative interpreting the requirements in the light of their professional rules of conduct with regard to the use of agents, interpreters or any other intermediary." (Again, my emphasis). I do not know what is Ms. Williams status in the LCD. I simply do not know what she had in mind when making the italicised statement above; it seems to me to be thoroughly vague, perhaps deliberately so. In my judgement, no authoritative status at all can be conferred on the letter.
At this point, I revert to the question of the delegation of the statutory duties imposed on the legal representative by para. 4 of the CFAR. I was referred to a passage in Bowstead & Reynolds on Agency 16th edition at para. 2-016, which suggests that the functions of the legal representative are non-delegable:
"An agent may be appointed for the purpose of executing a deed, or doing any other act on behalf of the principal, which the principal might himself execute, make or do; except for the purpose of executing a right, privilege or power conferred, or of performing a duty imposed, the exercise or performance of which requires discretion or special personal skill, or for the purpose of doing an act which the principal is required by or pursuant to any statute, to do in person."
Neither Mr. Pilling nor Mr. Bacon produced any of the authorities cited in the footnote and I have not since had access to them. However, in my judgement, the passage appears to provide yet further support for the proposition that the duties of the legal representative are simply non-delegable beyond, in the case of the panel solicitor, members of his firm.
I am conscious that the courts now are encouraged to give a purposive interpretation to legislation if at all possible, that is to say to strive to give effect to the purpose of the legislation, rather than to be hide-bound by literal interpretation. I appreciate the practical and geographical difficulties associated with a panel solicitor located at one end of the country having to give information and / or advice orally to a potential client located at the other, as was the case here with Mills Kemp & Brown situated in Barnsley, South (?) Yorkshire and Mr. English living in Peterborough. But there is such a thing as a telephone; alternatively the case papers might be sent to a panel solicitor practising rather nearer to the potential client. I have looked again at the letter from Mr. Neil Ross, Legal Director of TAG to Ms. Helen Williams at the LCD of 21st November 2000, a copy of which is at tab 2 of the bundle put in by Mr. Bacon. In that letter, Mr. Ross said,
"A visit by a member of our staff is made to every potential client following the claim being independently vetted and then accepted by one of our panel solicitors. During this face to face visit the panel solicitor's CFA is orally explained to the client at the same time as the insurance cover and funding of the scheme is explained. This allows our company to control this part of the process as the insurance cover can not be provided until the CFA is signed by the client and delay here would delay the claim moving forward."
I confess to some difficulty understanding the logic of the words in (my) italics. First, I can see no reason for delay of a kind which would be likely to be prejudicial to the claimant. Secondly, I do not see why a visit by a member of TAG's staff, rather than a meeting or discussion with the panel solicitor or a member of his staff as legal representative, would avoid such, or any, delay. Unless TAG really does wish to exercise such a degree of control over the claimant as will ensure that the claimant signs up to the Legal Protection policy and associated CCA finance agreement, there seems to me to be no justification for the use of the words "... allows our company to control this part of the process..."
I note what the author of the defendant's skeleton argument has to say at para. 22. There TAG and its scheme is described in derogatory terms as ingenious, iniquitous and commercially ruthless. That is strong, emotive language and I dissociate myself from it. That said, I believe that Parliament had good reason to include the safeguards in the CFAR which have featured as a constant thread throughout this judgement. I further believe that by seeking to bestow upon their own employees, or those of an associated company, a status which, for the reasons I have endeavoured to explain, it is impossible to bestow, the solicitors Mills Kemp & Brown with Hinchliffe Baker have fallen foul of the regulations. Accordingly, I would answer affirmatively the question posed by the preliminary issue. It follows that the claimant has no right to an indemnity for payment of his legal costs from the defendant.
This hearing was conducted in chambers and I indicated that I would deliver judgement by causing it to be promulgated in writing to the parties' solicitors rather than requiring further attendance before me. I am conscious that my decision may have far-reaching implications and I indicated that without further ado, I would give permission to appeal. I duly do so. I presume that it will be accepted that the costs of the hearing should follow the event, that is to say that the defendant should have his costs against the claimant. If there is any disagreement about that, the parties should please seek an early appointment from the listing clerk.
A. S. Wharton District Judge 5th August 02 (Peterborough County Court)
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