Page 5 - Inside Law Magazine Issue 8 - Autumn 2014
P. 5


M is-certification of a Bill of Costs has al-            determine whether or not the indemnity principle
            ways been and will remain a serious is-      had been breached. Lord Justice Henry stated that:
            sue. However, most recently, this issue has  “the signature of the Bill of Costs under the rules is
 again reared its ugly head before Master Leonard        effectively the certificate by an Officer of the Court
 in the case of Jagjit Bamrah v Gempride Limited.        actually receiving party’s Solicitors are not seeking to
 This case came before Master Leonard nearly sixteen     recover in relation to any item more than they have
 years ago to the day of the leading case (still con-    agreed to charge their client under a contentious
 sidered good Law) of Bailey v IBC Vehicles Limited      business agreement. The Court can (and should
 (1998) EWCA Civ. This matter concerned enquiries        unless there is evidence to the contrary) assume
 as to the Claimant’s Solicitors retainer and sur-       that his signature to the Bill of Costs shows that
 rounding matters by the Defendant’s Solicitors to       the indemnity principle has not been offended”.

Straightforward guidance given, it would         At this juncture, the Defendant also request-  Claimant had acted in an “unreasonable”
therefore be safe to assume, however,            ed disclosure of the Claimant’s CFA which      and “improper” manner and disallowed
despite Lord Justice Henry’s comments,           was disclosed and upon reviewing the CFA,      all of the profit costs for Part I of the Bill
concerns still arise on this issue. It even led  the Defendant realised that the hourly rate    of Costs for the part that breached the
to the association of Her Majesty’s District     provided for was in fact £232.00 and con-      indemnity principle. This was not an in-
Judges to argue for the abolition of the         sequently, issued an Application seeking       significant amount and highlight the con-
indemnity principles stating that “it causes     an Order to strike-out the entirety of the     sequences of mis-certifying a Bill of Costs.
far more problems than it solves”, however,      Claimant’s costs and further seeking to re-    Effectively, the Claimant had signed
the Ministry of Justice ruled out the abolition  sile from the concessions previously made.     the Bill of Costs stating that the hourly
of the indemnity principle. Sir Rupert Jack-     The matter came before Master Leon-            rates were agreed with the client, how-
son did not consider there was any need          ard on the 5th March 2014 whereby he           ever, the hourly rates claimed in Part I
for any additional common law principle.         heard the following arguments from the         of the Bill of Costs were £48.00 in ex-
Despite the serious offence and the pre-         Claimant:                                      cess of the terms of the CFA, equating to
sumption of trust in the person certifying       1. The work merited an enhanced rate           £96.00 including the 100% success fee.
the Bill of Costs, we now have another           and she sought to review the pro-              This Judgment, however, has highlighted
case of Jagjit Bamrah v Gempride                 visions of the CFA retrospectively;            the Court’s wide discretion to allow part
Limited.                                         2. The response regarding alternative          of the costs. Applying CPR 44.11, Master
This was a personal injury tripping claim        funding was not inaccurate, merely the         Leonard ruled that it would be “unduly
whereby liability was not an issue and           BTE insurer refused to fund the claim          harsh” to disallow all of the Claimant’s
the claim settled for £50,000.00 by way          unless Panel Solicitors were instructed;       entitlement to costs and therefore Part
of an acceptance of a Part 36 Offer. The         3. The second firm maintained that they        II of the Bill of Costs was not struck-out
claim was initially deal t with by Jagjit        had been quite entitled to rely on the facts   with Master Leonard stating that the as-
Bamrah herself, a sole practitioner within       that the Claimant, as an experienced Per-      sumption with regard to the alternative
a Limited Company before being taken             sonal Injury Solicitor, would have already     funding had been an honest mistake.
over by a second firm and therefore the          looked into whether she had any Before         We can see therefore that the indemnity
Bill of Costs was split into two parts to-       the Event Legal Expenses Insurance and         principle is still alive and well despite the
talling £201,086.76 globally. Part I con-        would have used it if it would have pro-       Jackson Reform and despite being nearly
tained an hourly rate of £280.00 per hour        vided her with the appropriate cover;          16 years to the day following the Leading
and a success fee of 100% and Part II            4. Finally, from the Defendant’s perspec-      Case of Bailey v IBC Vehicles Limited.
contained £217.00 per hour and 20%               tive, they argued that the Claimant was        Supplying misleading information is also
respectively. Each firm had prepared and         a litigant in person who could not enter       a serious offence, for example, a response
certified their respective parts of the Bill.    into a contract with herself, rendering the    concerning Before the Event Insurance
In July 2013, Detailed Assessment proceed-       CFA unenforceable between the parties.         enquiry cannot be made to state that this
ings were commenced. The Defendant               The Judgment followed that Master Leon-        was not available simply because the term
offered an hourly rate of £241.00 per hour       ard stated there was no provision within       of such enquiries were not acceptable to
which was accepted and there was also            the Agreement permitting a retrospective       the Claimant’s Solicitors. The Judgment
another issue with regards to the availability   revision of the hourly rates and stated that   also highlights the Court’s wide discretion
of Before the Event Insurance (which is          the Claimant was in breach of a duty to the    to allow part of the costs and long estab-
not considered in any detail in this article)    Court. Master Leonard accepted that the        lishes the principle that he who comes
however, Master Leonard held that this                                                          to Court must do so with clean hands.
“untrue” response was unreasonable and
improper pursuant to CPR 44.11 (1) (b).                                                                                              5
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