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England and Wales High Court (Senior Courts Costs Office) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Senior Courts Costs Office) Decisions >> Poccia v Toussiant [2004] EWHC 90016 (Costs) (13 July 2004) URL: http://www.bailii.org/ew/cases/EWHC/Costs/2004/90016.html Cite as: [2004] EWHC 90016 (Costs) |
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SCCO Ref: 0309182 |
SUPREME COURT COSTS OFFICE
London, EC4A 1DQ |
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B e f o r e :
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Fabio Poccia (by his Litigation Friend Giovanni Lombardo) |
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- and - |
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Steven Toussiant |
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Mr Power (instructed by Budd Martin Burrett) for the Defendant
Hearing dates : 27 April
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Crown Copyright ©
Master Seager Berry
"The point is rejected. The litigation friend acted (inter alia) in the capacity of an expert for language/interpretation matters and also as an Italian lawyer based in the United Kingdom. His expertise and services were of crucial importance in acting as a conduit for communication, promotion of the Claimant's case, and overall management of the Claimant's needs/ requirements particularly on the Claimant's return to Italy where the burden of providing for this severely-disabled young man was carried out by the litigation friend. Without the litigation friend's considerable input the Claimant's welfare and care could not have been stabilised and maintained pending trial on liability and quantum of damages. It is no exaggeration to assert that the progress of this action, the question of interim payments, and resettlement of the Claimant, were heavily dependent on the litigation friend and could not have been adequately covered without such professional assistance.With regard to the fees claimed, the litigation friend has furnished a close breakdown of his time. On the basis that this point of dispute is pursued it is intended that the litigation friend will attend the assessment hearing to support and explain the relevance of his involvement. The Costs Judge will be requested to allow the reasonable cost of the attendance of the litigation friend."
i. 17 February 2004 from Mr Nigel Baker QC (who represented the Claimant at the liability trial and who continues to represent him in the damages claim). He referred to the help given by Mr Lombardo as an Italian lawyer well versed in the procedures for personal injury litigants in Italy and in particular the procedures applicable to patients in Italy. Mr Lombardo had acted frequently as an interpreter including the consultation which Mr Baker held at the Claimant's home near Rome and had been an intermediary in communicating with the Claimant and his parents.
ii. 10 July 2003 from Richard Greenwood MD FRCP who was the consultant neurologist. He also referred to the help given by Mr Lombardo in arranging visits to the Claimant, the provision of invaluable information and his translating role in communicating with the family. He explained that Mr Lombardo's understanding of the case and the language had been invaluable. Without his help the two reports could not have been prepared.
iii. 21 July 2003 from Susan Edwards FCSP, a neuro legal physiotherapist. She also referred to the invaluable assistance provided by Mr Lombardo in arranging a visit for the purpose of carrying out her physiotherapy assessment and in providing translation services.
"Item No. |
Item | VAT | Disbursements | Profit |
14 July 1997 SGT Davis of Accident Investigation Unit Engaged: Lombardo – 40 minutes |
166.66 |
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Total: | 166.66 | 29.16 | ||
1. | Total Claimed | 195.82" |
"Who may be a litigation friend without a court order- 4(3) If nobody has been appointed by the court or, in the case of a patient, authorised under Part VII, a person may act as a litigation friend if he –
(a) can fairly and competently conduct proceedings on behalf of the child or patient; and(b) has no interest adverse to that of the child or patient; and
(c) where the child or patient is a claimant, undertakes to pay any costs which the child or patient may be ordered to pay in relation to the proceedings, subject to any right he may have to be repaid from the assets of the child or patient.
How a person becomes a litigation friend without a court order
- 5(2) A person authorised under Part VII of the Mental Health Act 1983 must file an official copy of the order or other document which constitutes his authorisation to act.
(3) Any other person must file a certificate of suitability stating that he satisfies the condition specified in rule 21.4(3).
(4) A person who is to act as litigation for a claimant must file –
(a) the authorisation; or(b) the certificate of suitability,
at the time the claim is made."
"The litigation friend- 1 It is the duty of a litigation friend fairly and competently to conduct proceedings on behalf of a child or patient. He must have no interest in the proceedings adverse to that of the child or patient and all steps and decisions he takes in the proceedings must be taken for the benefit of the child or patient.
- 2 A person may become a litigation friend:
(1) of a child –(a) without a court order under the provisions of rule 21.5, or(b) by a court order under rule 21.6, and
(2) of a patient –
(a) by authorisation under Part VII of the Mental Health Act 1983, or(b) by a court order under rule 21.6.
…
- 4 The evidence in support must satisfy the court that the proposed litigation friend:
(1) consents to act,(2) can fairly and competently conduct proceedings on behalf of the child or patient,
(3) has no interest adverse to that of the child or patient, and
(4) where the child or patient is a claimant, undertakes to pay any costs which the child or patient may be ordered to pay in relation to the proceedings, subject to any right he may have to be repaid from the assets of the child or patient."
i. the Claimant was an Italian and was incoherent as a result of the accident.
ii. The Claimant returned to live in his native Italy within a few months of his accident to be cared for by his parents. It was not practicable for the parents to act as litigation friend. They were not highly educated and did not speak English. They were living in the accommodation provided by a part payment for damages.
iii. The litigation of his claim was conducted in the United Kingdom, where the accident occurred.
iv. It was not unreasonable for the Claimant to use UK solicitors.
v. The role of the litigation friend was crucial to the efficient and effective conduct of this litigation since the accident which occurred in 1997. He had built up a rapport with the Claimant and his parents.
vi. His role was more than merely that of a translator. He acted as a conduit or facilitator between the Claimant and his solicitor; and provided substantial assistance, especially when liaising with the medical and care experts in Italy.
vii. The three references which I have set out above and the contribution which the litigation friend had made to their respective involvement.
i. The Claimant was a patient within the meaning of the Mental Health Act 1983. He was unable to give instructions and was incapable of forming a binding contract (see Chitty on Contracts 27th edition 8-064).
ii. The Claimants' parents, acting as his agent, were not able to enter into a contract because an incapable principal cannot grant authority to an agent (Bowstead on Agency 17th edition 2-009). They could only contract on their own behalf.
iii. No-one had applied for or obtained an order under the Mental Health Act.
iv. No application had been made to register in England the court order permitting the father to manage the Claimant's affairs in Italy.
v. A contract was voidable if the contracting party did not know the party was incapable. That could not apply because Mr Lombardo must have known the full circumstances about the Claimant's health.
Mr Power submitted there could not be any contract between the Claimant and Mr Lombardo for these reasons.
"Restriction on payment otherwise than from the FundWhere a certificate has been issued in connection with any proceedings, the assisted person's solicitor or counsel shall not receive or be party to the making of any payment for work done in those proceedings during the currency of that certificate (whether within the scope of the certificate or otherwise) except such payments as may be made out of the Fund."
"(1) A solicitor who is retained or employed to prosecute or defend any action, suit or other contentious proceedings shall not enter into any arrangement to receive a contingency fee in respect of that proceeding, save one permitted under statute or by the common law."
He submitted that at the hearing on 19 February 2004 it was stated that there was an understanding that Mr Lombardo would be paid if the case succeeded and not if the case was lost. Such an agreement would be a contingent fee agreement. The inference was that Mr Lombardo had been approached, probably by the Claimant's parents, for the purpose of obtaining damages as a result of the Claimant's accident. He undertook work normally performed by a solicitor conducting the proceedings. Mr Lombardo had filed a certificate dated 14 (possibly 19th) June 2000 under CPR 21.5(3) certifying that he could "fairly and competently conduct proceedings" on behalf of the Claimant. He submitted that there was no difference between a solicitor employed "to prosecute or defend proceedings" (rule 8) and a solicitor "conducting proceedings" (CPR 21.5(3)). Accordingly, Mr Lombardo's contingent fee agreement did not comply with Section 58 of the Courts and Legal Services Act 1990 and was therefore unlawful and unenforceable. Rule 8 had statutory force ( Swain v the Law Society [1983] 1 AC 598 and Awwad v Gerherty [2001] QB 570). It appeared that Mr Lombardo had been instructed before Jonathan Clarke & Co and Ouvry Goodman. The claim form was signed by Ouvry Goodman and by Mr Lombardo as litigation friend. I discount that point since it appeared to me to be a drafting error with the reference to Mr Lombardo as being litigation friend inadvertently inserted between the references to Ouvry Goodman and acting as solicitors for the Claimant. On 19 February 2004 Mr Lombardo had signed a costs estimate as solicitor and litigation friend for the Claimant.
"60. There is good reason why principles of maintenance and champerty should apply with particular rigour to those conducting litigation or appearing as advocates. To demonstrate this we can do no better than cite a passage in the judgment of Buckley LJ in Wallersteiner v Moir (No.2) [1975] QB 373 at page 401:"It may, however, be worthwhile to indicate briefly the nature of the public policy question. It can, I think, be summarised in two statements. First in litigation a professional lawyer's role is to advise his client with a clear eye and an unbiased judgment. Secondly, a solicitor retained to conduct litigation is not merely the agent and adviser to his client, but also an officer of the court with a duty to the court to ensure that his client's case … is also presented with scrupulous fairness and integrity … a legal adviser who acquires a personal financial interest in the outcome of the litigation may obviously find himself in a situation in which that interest conflicts with those obligations …"
MY DECISION
"(d) performing an act which is either unusual in its nature or involves unusually large expenditure."
If it was the intention of the Claimant's solicitors to seek to recover the fees of Mr Lombardo or his colleagues they would have made application to the Legal Aid Board for prior authority. That would have been a step which:
"a sensible solicitor sitting in his chair and considering what in the light of his then knowledge is reasonable in the interests of his lay client"
would conclude was necessary (see the judgment of Sachs J in Francis v Francis & Dickerson [1955] 3 All ER 836 at page 840D). A sensible solicitor would also make enquiries about the basis on which Mr Lombardo was retained. If there was any doubt about the terms of retainer he should have investigated the position further, especially when the case appears to have been referred to him by Mr Lombardo. The sensible solicitor would also check on the current prospective costs of Mr Lombardo so that they could be included in the information provided to the Legal Aid Board/Legal Services Commission and included in the details of costs in the allocation questionnaire and listing questionnaire. The sensible solicitor would also address the fact that there can only be one firm of solicitors on the court record and only one nominated solicitor in receipt of the legal aid certificate. None of these issues appear to have been addressed.