SCCO deals blow to new CFA challenges.

An interesting decision from SCCO Costs Judge, Master James in Hanley v JC & A Solicitors Limited [SCCO Ref JJ 1706056] concerning an application by a former client for the delivery up of the solicitor’s full file of papers.

The Claimant was seeking to challenge the deduction of the solicitor’s fees from his damages under the terms of a conditional fee agreement but did not have copies of all his case documents (including the CFA and other funding documents). He had sought copies of the same from his former solicitors in return for payment of their copying charges at 25p per copy. The Defendant firm refused to hand over documents over which it had proprietary rights and argued that the matter concerned an RTA claim that concluded 2 years’ previously for £3,500 in general damages and the Claimant had not been concerned about the deduction for a ‘fee contribution’ of £1,086 from his damages until JG Solicitors Ltd contacted him as part of a marketing push.

Master James confirmed that the SCCO is receiving a large and increasing number of claims from claimants who, having been represented under a conditional fee agreement, had seen their damages ‘depleted’ as a result of the Jackson reforms which came into effect in April 2013 and which saw the end of the recoverability of additional liabilities from losing parties.

However, in refusing the application, Master James said she was ‘concerned by the floodgates that would likely be opened by a ruling that solicitors can be ordered to hand over their complete file in circumstances such as these; such a move would foreseeably instil considerable satellite litigation and I am not persuaded that this would be a positive step’. Master James added ‘I am not persuaded that I should order production of documents that do not belong to the claimant.’ and ‘there is currently no [binding] decided case in which solicitors have been ordered to hand over papers over which they (rather than the clients) have proprietorial rights’.

Furthermore, it was noted by Master James that the costs of the application as put forward in a Statement of Costs by the Claimant’s solicitors, JG Solicitors Ltd, were considerably more than what the Defendant firm had billed for the RTA claim.

It seems the SCCO is keen to avoid being overwhelmed as the costs industry looks to new horizons, in the face of fixed costs, by starting a new costs war over CFAs. Master James prepared a 12-page judgment in anticipation of an appeal so we will have to wait and see if her decision really has dealt a blow.