As a costs firm, we are finding that we are dealing with more and more Solicitors Act claims between individuals and their instructed solicitors. We are often seeing aggrieved individuals who have lost their case and suddenly come to the reaslisation they may have significant costs to pay. It is easy to differentiate between those potential clients, and those that have genuine reason to question the level of costs they are being confronted with. Given the exponential increase in the number of challenges seen especially over the last year – we take a look at a recent case involving the Solicitors Act jurisdiction and the question of CPR 18 and requests for further information.
Raubenheimer v Slater & Gordon UK Limited  EWCH B12 (Costs)
In August 2020, the Claimant made a Part 18 (CPR 18.1) request for further information regarding the ATE premium; the Part 18 tantamounted to the following;
- Details of the ATE insurer and provision of the policy documents;
- Details as to any other involved intermediaries in the provision of the ATE insurance.
- Confirmation as to whether the now Defendant in the matter received any direct or indirect payments from the ATE. insurer/insurance intermediary/associate and if so, the amounts.
The Defendant did not serve any replies to the request, resulting in an Application by the Claimant compelling the Defendant’s reply made in October 2020. Within the application for replies to the initial Part 18 request, the order sought also made a request for the Defendant to provide evidence of payments. The Defendant’s acting solicitor confirmed that the ATE was paid in accordance with the cash account, leaving the initial Part 18 request the only outstanding element of the application.
Following receipt of evidence, it showed that payments appeared to have been made between the Defendant and the ATE insurers (Elite) and it was the Claimant’s case that the Defendant “appears to have, breached its fiduciary duty not to make a secret profit from its role as a fiduciary”. The Defendant’s position in these proceedings was that “the claimant is simply not entitled to make the request in these proceedings”. Reference was made to Herbert v HH Law Ltd  para 71 which the Defendant suggested answered the Claimant’s application fully – “the claimant is not entitled to challenge the amount of an ATE insurance premium through Solicitors Act proceedings. On that basis, there can be no entitlement to a request for information via Part 18…”.
The Claimant’s response to this was two-fold;
1. Should the information be provided
2. The premium can be investigated by the court via the cash account (as opposed to the Bill) – this is subject
to the Solicitors Act.
In response to the first point; it was accepted that this was the second issue to address and the Court determined quickly that if the court has no jurisdiction to deal with the ATE premium it would not be correct for the court to seek response to the Part 18 request. It was suggested that a pre-action disclosure application may be the correct course. The court moved onto the second point which “requires the consideration of the nature and extent of the case account and its role within Solicitors Act Proceedings”.
Cash Accounts – History
A definition of the role of cash accounts given in 1963 provided;
“Payments made by a Solicitor on his clients’ behalf fall into two categories.
First, payments made in the course of his duty when acting for a client as solicitor are termed “disbursements.”
Secondly, those payments made on behalf of the client as his agent are termed “cash account items.” Disbursements are included in the bill of costs itself. The cash account is a separate statement containing receipts and payments which is usually delivered to the client with the bill of costs, thus giving the client a complete record of the whole financial aspect of the transaction.”
Historically, due to the Scale fees prescribed and enforced by the Taxing Office, the division of disbursements between those chargeable and those where the solicitor was acting as an agent, was straightforward. And on presentation of the Bill to a client, this would be provided with a copy of the cash account for completeness and comparison as to what has been paid on an interim basis and therefore what remains outstanding/owed back.
Clearly this division has progressed over time and the solicitor will invariably finance payments rather than taking money on account as would have occurred previously – helping with the division between disbursements and cash account item. As the waters have become muddied over time with the change in relationship, some items are difficult to adduced as to whether a disbursements or case item – herein the ATE premium. Where the ATE premium fell was established in Hollins v Russell  in the determination that the contract for the ATE was between the client and the ATE insurer directly – this would render the ATE a cash account payment and as such, cannot be assessed under the Solicitors Act.
The Claimant’s counsel put forward a “novel” argument under CPR 25.1 (1) (o) that the court is within their jurisdiction to grant an interim remedy by way of an order for an inquiry of an account to be undertaken; and apply PD 40A – this would allow the court to ‘scrutinise its contents’ given that there is a dispute in this matter. The Defendant’s Counsel countered these arguments relying on CPR 46 governing Solicitors Act proceedings. PD40A provides a structure to deal with challenges to entries in the cash account (where supported) however Part 46 provides no guidance allowing the Court to determine disputed entries in a cash account. On behalf of the Defendant it was put forward that 6.19 to PD 46 means that the court should only determine the cash account based on calculations of arithmetic; the Claimant argued that the Court was to ‘determine’ and look further into before coming to a result.
CPR 46 PD46
‘6.19 After the detailed assessment hearing is concluded the court will –…
(b) determine the result of the cash account;’
CJ Rowley established that the assessment of the Bill of Costs must take place before the cash account can be completed; a payment to another party for example would be paid as an agent for the Client and therefore an adjustment must be made to the cash account but this amount should not appear on a Bill of Costs. This was accepted by both parties as the ‘purposes of the determination of the cash account’. The Court highlighted however that this did not run alongside assessing the reasonableness of such an amount.
How the challenge should have been raised
References were made by both parties to Tim Martin Interiors v Akin Gump LLP  where the Claimant was liable for costs as a third party to the agreement between the mortgagee bank and the Defendant. As the chargeable party, the Claimant was able to bring proceedings under s.71 of the Solicitors Act but it was determined on Appeal the Solicitors Act proceedings were an ineffective recourse to bring a particular challenge. Paragraph 102 assisted Costs Judge Rowley; “In the light of this judgment it may be anticipated that third party assessments will become rare, whereas claims for an account, and like proceedings in other types of case, where the real issue is as to the reasonableness of legal costs, best resolved by those experienced in the assessment of costs, may become much more frequent. With that in mind, it seems to me that it might be sensible for a dispute which is only, or mainly, about legal costs to be able to be commenced as an application for an account directly in the SCCO, rather than having to go via the Chancery Division… So far as the jurisdiction of the county court is concerned, as regards an assessment under section 70 or 71 it is limited to a case where the bill relates wholly or partly to contentious business in the county court and where the bill does not exceed £5,000: see article 2(7) of the High Court and County Courts Jurisdiction Order 1991. So far as I am aware, none of the financial limits on the jurisdiction of the county court in that article applies to a claim for an account under a mortgage. It seems to me that the appropriate procedure for a dispute of this kind is a subject worthy of the attention of the Civil Procedure Rules Committee.”
It was this that the Defendant relied upon to support their position that any challenge regarding the reasonableness of the ATE premium should be have been made elsewhere, such as in the Chancery Division rather than the SCCO. The Claimant maintained that the claim was brough for proceedings for an account via Part 8 which was effectively brought within the High Court/ SCCO. Costs Judge Rowley sided with the Defendant on this point and suggested that Lloyd LJ was merely making the suggestion that the Civil Rules Committee may want to consider a ‘short cut’ where an assessor would naturally fall to be an expert costs assessor in those matters – requiring a simple transfer from the Chancery Division to the SCCO.
The Claimant’s final submission in support of the SCCO compelling the Defendant’s Part 8 replies, was inherent jurisdiction. The basis of the submission being that it was a ‘right and a duty’ of the court to supervise solicitors’ conduct and that the Claimant’s Part 18 request was “not an onerus request”. The Defendant sought to challenge the submission on the basis that any supporting case law pre-dated regulating bodies now in place to govern the conduct of solicitors reducing the need for the Court to intervene. Both parties made their cases on the point;
46. Mr Marven said that the claimant could not sidestep the jurisdictional point that was being taken. The purpose of a Part 18 request is to know the case which is to be met. That test cannot be satisfied here because it is for the claimant to set out the case and he has not done so. Inevitably therefore the defendant has not set out any case and so the claimant cannot say either that he needs the information in order to meet that (as yet unpleaded) case.
48. Mr Dunne said that the claimant had established, at least prima facie, the facts showing that the defendant had received an undisclosed commission. The claimant wanted to establish the defendant’s position via the Part 18 request in order to set out the full extent of the case that could be made. It was a Catch-22 situation for the defendant to say that the claimant had to set out its case before providing information that would enable the claimant to do so.
Costs Judge Rowely confirmed that the cash account is defined under CPR 46 PD46 6.6(b); in summary it is a ledger showing the ‘receipt of monies during the retainer, invoices rendered and the payment of items’. It was confirmed, the ATE premium falls into this definition and is paid for by the solicitor often as an agent. Proceedings under the Solicitors Act require consideration of the invoices raised together with the ledger/cash account. Having already determined that the cash account requires nothing more than final calculations and the Court of Appeal’s finding that an ATE shouldn’t be included on a solicitors invoice, Costs Judge Rowely was simply unable to find he had jurisdiction within the Solicitors Act to ‘consider the composition of the premium’.
Interestingly, Costs Judge Rowley highlighted that the way in which the Claimant brought proceedings was a far more convenient way to deal with the questions sought mirroring the suggestion for the Civil Procedure Rule Committee to look into the matter as put forward by Lloyd LJ in Tim Martin but concluded to state that convenience was not sufficient to allow proceedings which have technically been brought within the wrong jurisdiction.
The Claimant’s application to compel Part 18 replies was dismissed.
This case involved one claimant from potentially hundreds of other claimant’s claims and following further discussion between the parties and Costs Judge Rowley, and the hefty defence of this one application by the Defendant, it is evident that significant sums are at play between a number of Claimant’s and the Defendant which make the Part 18 request perhaps not one of such simplicity as purported (para 43).
Commenting further, with the questions as to why the Claimant shouldn’t require the Defendant to set out its case not having yet been answered, there would be difficulty in criticising the Claimant in bringing alternative proceedings for which the Defendant would have to answer especially noting the level of sufficient evidence held by the Claimant – and it was on that basis that the Court did not consider it necessary to invoke inherent jurisdiction with other avenues available to the Claimant.
It is highly doubtful that this matter will end here; given the scope of the potential number of claimants and subsequent value coupled with the vigour of the Defendant’s defence and the final comments of Costs Judge Rowely, the next instalment in this case is hotly awaited.