Inaccurate notice of funding creates an estoppel to prevent QOCS application
20th July 2016
Matthew White, a member of our personal injury team, provides an update in the case of Price v Egbert H Taylor & Company Limited. Appeal REF. BM5/007/A, Birmingham County Court, HHJ Lopez, 16/6/16.
This is the latest round in what has proved an interesting procedural case. The previous decision on appeal (to the effect that issuing an application without a fee means that the application is not properly made) was reviewed here.
The Claimant suffered a stroke at work. He contended that his employer should have called an ambulance rather than driving him to a hospital which (as it turned out) could not deal with stroke victims. His claim was struck out for procedural failings. He appealed and lost. After the appeal (for the first time) he asserted that there was no old-style CFA in place and therefore (he asserted) qualified one-way costs shifting applied. This came as news to the Defendant who had received a letter before action dated 30/10/12 (i.e. before QOCS existed) saying amongst other things “Please be advised that our Client’s claim is being funded by way of a Conditional Fee Agreement which provides for a success fee.” If that letter was right, QOCS could not apply (since an old-style CFA would have been in place – CPR 44.17).
C’s case was that the 30/10/12 letter was simply wrong; there was no CFA in place. C’s solicitor filed a statement saying that there was no client care letter and no correspondence with the client dealing with funding(!).
The Defendant contended (and the court accepted) that the Claimant could not escape from its erroneous communication to the Defendant (i.e. the letter of 30/10/12). This is encapsulated in paragraph 80 of the judgment:-
“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 30th 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.”
There is a problematic double negative at the end of that quote, but paragraph 82(i) of the decision makes it clear:-
“It is declared that the Claimant having represented that there was a pre-commencement funding agreement in place and the Defendant having relied upon that representation, the Claimant is now estopped from asserting that no such agreement was in place and/or that qualified one-way costs shifting applies. Accordingly the above costs orders may be enforced against the Claimant.”