Once fixed costs are eventually extended (with no definite date as yet confirmed for planned implementation), minds may well need to be focused on the level of service that can be provided within whatever tariffs are ultimately imposed. Those concerned about the practicalities of serving clients within the constraints of fixed fees can take some measure of comfort from the decision in Graham Thomas v Hugh James Ford Simey Solicitors  EWCA Civ 1303, as Dominic Woodhouse reports.
In this case, the Court of Appeal had to turn its mind to the duty of care owed by solicitors to a client under their retainer to advance a claim for damages for vibration white finger (VWF) under the Claims Handling Agreement with the Department of Trade and Industry, for which the solicitors received the princely sum of £607.00 plus VAT.
The Claimant had a medical assessment, and received an offer in respect of general damages. His solicitors discussed with him the possibility of making a claim for services. The Claimant indicated that he would not be able to provide supportive evidence (apparently having paid for assistance on a cash in hand basis, with the implication of concern that such payments may not have been declared by the recipients and therefore cause problems for them if investigated; presumably the Claimant hopes that this judgment, in which they are named, is not shared with a relevant authority), and he was not in any event all too interested in making such a claim, despite being told it could be ‘significant’ in amount. The solicitors treated that as effectively closing the door to a claim for services.
With the natural and logical way in which advice could be expected to be given, the client having effectively closed off the possibility of such a claim, the solicitors did not further advise as to the approximate value of a services claim if made, or that the Claimant would receive a payment on account of the offer for general damages if a services claim was pursued. Contrary to submissions made by counsel for the Claimant, in Lord Justice Jackson’s view the question was not one of fact, but of law, as to whether the solicitors’ treatment of the Claimant’s position as closing off a potential services claim, and therefore not advising on the value of such a claim or the possibility of an interim payment, amounted to a breach of duty.
In the course of the judgment, and by the way, we find that the Claimant was ‘an intelligent and articulate man’ who ‘knew his own mind’, a refreshing perspective from the Court of Appeal, contrary to the rather less complimentary assessment made of ex-miners in Myatt v National Coal Board  EWCA Civ 1017. My grandfather (a miner and reader of Latin, and who would therefore, I am given to understand, have a greater appreciation of the beauty of St Augustine’s Confessions than I could comprehend reading it in the English translation) would have been pleased.
Whether the solicitors were correct to treat the Claimant’s comments as closing off the services claim was effectively determinative of the issue, with Lord Justice Jackson accepting that the logical sequence of advice would mean the other points would not be covered if no such claim was to be made.
On that point, Jackson LJ decided:
“[I]f a client instructs his solicitor that he does not wish to pursue a particular head of claim and that he does not have evidence to support it, the solicitor is not necessarily under a duty to challenge that decision or to try to change the client’s mind. Obviously, issues such as this are fact-sensitive… Even so, if the client is an adult of full capacity, there comes a point when his autonomy should be respected.”
In the context of a fixed costs regime, whilst solicitors must still exercise reasonable skill and care in advising clients and pursuing claims, they ‘cannot be expected to turn over every stone and to pursue avenues of enquiry which the client has closed down.’ Applying a realistic standard in the context of the fixed costs applicable to the scheme, the solicitors could not be criticised for ‘not going the extra mile’, with Jackson LJ commenting:
“It is significant that this was a modest claim which the defendant solicitors were running under a fixed costs regime. I have read through their substantial file with admiration, bearing in mind the small amount of costs which they received at the end. Neither advocates nor judges should lose touch with reality. The CHA is a scheme for dealing with high volume, low value personal injury cases for fixed costs. There must be a sensible limit upon what we can expect solicitors to do in such cases.”
In Jackson LJ’s view, the court has to adopt ‘a realistic standard when assessing the performance of solicitors conducting litigation under a high volume, low cost commoditised scheme’, where ‘such schemes may be the only practicable way of facilitating access to justice in such cases at proportionate costs.’
No doubt others will comment on Jackson LJ’s expression of regret that the claim had ever been made, particularly given that the Claimant probably did not and does not have VWF, but the realism displayed in the judgment and its overtures to sensible standards are welcome as the profession daily moves a step closer to the application of fixed costs in an ever-increasing number of cases. Indeed, it may well be vital.
Dominic Woodhouse is a Senior Advocate at Victoria Square Chambers.
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