I am grateful to barrister Matthew White for sending me details and a copy of the decision of His Honour Judge Lopez in Price -v- Egbert H Taylor & Company Limited (16th June 2016). This is the second judgment in the matter. The earlier judgment arose from the claimant’s failure to send a fee with an application to extend. This judgment relates to the fact that the claimant’s solicitor had written stating that the action was supported by a CFA with an additional liability. It illustrates the need to be accurate in the description of a funding agreement.
The claimant’s action had been struck out because of a failure to serve in time. An appeal was refused. When the court came to consider the issue of costs the claimant argued that he had the protection of QOCS. The claimant did not have the benefit of a CFA or ATE policy.
THE CLAIMANT’S CORRESPONDENCE
The claimant’s letter of claim sent on the 13th October 2013 stated “Please be advised that our client’s claim is being funded by way of a conditional fee agreement which provides for a success fee”.
THE CLAIMANT’S ERRORS
The claimant’s solicitor gave evidence that this was an error.
- There was no conditional fee agreement.
- There were no letters on file dealing with the issue of funding.
- There was no client care letter.
- Counsel’s fee notes did not contain any additional liability. In fact counsel was instructed “on an ordinary private client basis and [the claimant’s solicitor] would have been responsible for the payment of counsel’s fees.
THE JUDGE’S FINDINGS
The judge made findings in relation to the claimant’s solicitors retainer and elements of the claim that led to wasted costs. However the central finding was that that the claimant was estopped from relying on QOCS.
“80. I accept the submissions made by Mr White in respect of the issue of estoppel. It is, I find, clear that by the letter of the 30* October 2012 the Claimant’s solicitor made a clear and unequivocal representation to the Defendant and its solicitors that the Claimant had the benefit of a conditional fee agreement, even giving the additional detail in the letter that the agreement provided for a success fee. Further, it is clear that the Defendant and his solicitors relied upon that representation. Therefore, I find that the Claimant is now estopped from asserting that Qualified One-Way Costs Shifting does not apply”
- An earlier post relating to the same case: Sending the fee with the application: failure can be final.
Posts on QOCS.
- QOCS continue to apply on appeal.
- QOCS and dishonesty
- The limits of QOCS: a High Court decision.
- QOCS, striking out and the ability to pay in full: a county court decision
- The transitional provisions of QOCS: The meaning of “proceedings”.
- The transitional provisions of QOCS : a danger area
- More about QOCS: can they apply on appeal if the claimant had a pre-April 2013 CFA?
- Can you get an order for QOCS to apply on appeal?
- QOCS in the Court of Appeal: four important issues.
- Setting aside notice of discontinuance in a QOCS case.
- The effect on QOCS on litigation.