Practice and Procedure

BRIAN UDALL v GKN WESTLAND SPORTS & SOCIAL CLUB (2003)

PUBLISHED December 23, 2003
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Cost negotiators had not been properly instructed as agents of solicitors acting for an insurance company as it could not be said that the solicitor had conduct of the case. Cost negotiators therefore would not be given rights of audience under s.27 Courts and Legal Services Act 1990.Preliminary issue in relation to cost negotiators' rights of audience under s.27(2)(e) Courts and Legal Services Act 1990 arising out of a bill of costs in a personal injury action. The claimant was an employee of the defendant company who in 1999 sustained an injury at work. The claimant commenced a personal injury action against the defendant which was settled out of court. Agreement was not reached in relation to costs and so the claimant issued costs proceedings under CPR 44.12. The defendant's insurance company instructed a company of legal cost negotiators who were to prepare the points of dispute and to appear before the court. The costs negotiators instructed a firm of solicitors ('Hill') to appear on the record. The instructions given to Hill gave no indication as to what the case was about or as to what complications attended the case. Section 27 of the 1990 Act only conferred a right of audience on a party where that party had been engaged in the conduct of the litigation and was so doing under instructions given by a qualified litigator. The claimant submitted that: (i) the cost negotiators had not been properly instructed by a qualified litigator and so had no right of audience; and (ii) the case of Sajida Ahmed v P Powell (2003) PNLR 434 applied which held that cost negotiators were not properly instructed as agents of solicitors acting for an insurance company and therefore would not be given rights of audience under s.27 of the 1990 Act.HELD: It was essential for the purposes of s.27 of the 1990 Act that a solicitor was seized of the case. If he was not then he could not properly instruct anyone to represent his client in any proceedings. Although a solicitor could properly pass his litigation part to a cost draughtsman the solicitor remained entirely responsible for the conduct of the proceedings. Hill knew nothing about the proceedings until they were instructed at the beginning of the year and the instruction was sparse. Although they took responsibility for the case the points of dispute had been drafted by the cost negotiators. Hill were simply a post box and in reality the proceedings were conducted entirely by the costs negotiators. The position was the same as Ahmed (supra) and that being so the cost negotiators did not have a right of audience under s.27(2)(e) of the 1990 Act.Judgment accordingly.

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