Claimant’s costs disallowed in full on the grounds of misconduct

Colin Farmer -v- The Chief Constable of Lancashire

In Bamrah -v- Gempride, the court disallowed 50% of costs on the basis of misconduct. In this matter, handled by the costs team at the firm, the claimant’s costs were disallowed in their entirety. The background is complicated, as might be expected, but amounts in essence to the following:

• The claimant’s bill of costs was served in June 2018, totalling £174,565.79.
• The bill indicated that the claim was funded by two retainers, CFA1 covered first three parts of the bill, up the solicitor leaving. CFA2 covered the final part. Both were dated post-LASPO.
• Among other issues, the points of dispute challenged the retainer, and put the claimant to strict proof that cancellation notices were included, as the agreement had been entered into at the claimant’s home.
• The claimant’s response stated that all the retainer docs were in order.
• However, prior to the first hearing, the claimant conceded that CFA1 had no cancellation notice, but that they relied on CFA2 as having retrospective effect.
• When the hearing opened, the master noted that the hourly rates claimed in the bill were higher than those allowed for in the CFA. The master ordered an adjournment and disclosure of all retainer documents.
• CFA2 was disclosed, with an attendance note and a signed cancellation notice from the claimant. There was nothing within the documents which would cover the first three parts of the bill, but the claimant’s representative advised that ‘there was an undertaking’.
• Prior to recommencement of the hearing, the claimant served a witness statement, apologising for the errors in the bill and provided a revised, albeit unsigned bill.
• An application was filed to strike out costs under 44.11 as no credible explanation ever provided for errors, and there had been a failure to assist the court, or provide a correct bill since the original hearing.
• The hearing recommenced and all costs were disallowed.

The claimant accepted that errors had been made in the case, but attempted to distinguish Bamrah, on the basis that the errors in this case were not made with intent, were genuine mistakes and any penalty applied ought to be less than the 50% reduction ordered in Bamrah.

The court was plainly unimpressed with this argument. The master found that the claimant had provided no evidence in support of entitlement to costs for the early period of the claim. The second CFA had been cancelled by the claimant and there was no evidence of any alternative retainer. The corrected bill stood at around one third of the costs as initially drawn (and this was not considered to be a sufficient sanction on its own.) It was also noted that the claimant had produced numerous, certified documents which had been signed without any proper regard or fact-check that matters were dealt with properly.

It was held that as well as being unreasonable and improper, the conduct of McMillan Williams Solicitors, up to and including the witness evidence, had been in breach of the CPR. That conduct, in the view of the master, warranted disallowance of what was left of the bill. The claimant was also ordered to pay the defendant’s costs of assessment and repay previous interim payments made on account of costs.