merlin

I have just won a personal injuries claims case after going to court following a car accident. The other party admitted full liability at a very early stage. The judge awarded me about what I expected beating my part 36 offer made several months ago, however he did not award full costs. Previously my solicitor had advised that "if you recover more than the Part 36 Offer you will recover interest at 10% over and above the usual rate, which is currently 7% on damages recovered, and we will also recover "indemnity" costs rather than "standard" costs."

The judge did not give any reason for not awarding full costs however from the discussion that took place beforehand, it was because he was unhappy with:

- the number of letters written by solicitor
- the seniority of my solicitor who wrote all the letters - the majority did not need the attention of a senior solicitor as they were simply updates
- the fact that the solicitor's costs were incorrect because for the first year the wrong charge rate had been used

My solicitor is "extremely galled" that he did not get full costs plus indemnity. There's a costs shortfall of £833 + VAT. My solicitor has now sent me a letter in which he says "I propose to invite you to pay £750 + VAT." It seemed to me that the judge wanted to punish my solicitor but now I'm getting punished instead. He says that "under the terms of engagement I am entitled to be paid for those fees that have all been reasonably incurred, in spite of the unhelpful comments of the Defendant's barrister." In the circumstances is my solicitor within his rights to claim this money from me?

It gets worse. While I was going through the letters yesterday I discovered what appears to be a number of errors in my special damages claim. The special damages claim was put together last year. The amount that was claimed and awarded at court was the amount stated in the special damages form that I received back then. However that draft had a blank entry for some of my travel expenses which I told my solicitor about immediately after receiving the draft. I have since asked my solicitor to add further travel expenses which he confirmed he had done. There was also a barrister fee incurred on the issue of quantum damages which I paid. This does not appear to have been claimed despite my solicitor confirming that this should be recovered. Also the court issue fee that I paid has not been reclaimed.

I haven't talked to my solicitor about any of this yet. Any advice would be appreciated.

T.C

Are you on a CFA or Private Client contract?

Although the Judge can award and usually will award indenmity costs, it is still at his discretion, and usually if the award is well in excess of the part 36 offer, then that should have been applied for straight away, as well as the interest back dated to the date of the accident.

You do have the right of appeal, and a circuit judge may well find in your favour, but a lot will depend on by how much the award exceeded the part 36 offer.

The solicitor is entitled to ask you to pay the shortfall of his expenses, but it is something many firms will not do, for example (and fortunately it doesn't happen very often) we never ask the client to pay the shortfall if there is such a situation, we simply write it off, but then being a larger firm we can perhaps afford to where a smaller firm cannot.

If your solicitor or Barrister failed to ask for the indemnity at trial, and there are serious errors in your claim for special damages, then there may be a possibility that your solicitor was negligent, but that would need another solicitor to look at the case papers to ascertain where an action would stand if you took it further.



[Edited by T.C - 8/8/2003 9:50:53 AM]

ProperCharlie

If you have been awarded 14.5k and you are out of pocket about 1k, don't you think it might be worth just coughing up the 1k and calling it a day? You are still 13.5k to the good after all. It may grate a bit, but in my experience you can waste a lot more money trying to pursue things further.

Gordo

tell him to sod off - point out the issues (and where you believe he messed up, including his erroneous advice) and see what he says. if he still won't waive the fee, then complain to the senior ptr (but let him sort it first, and then let him know you're heading for complaint land)

Spoon

Charlie- WTF?

Gordo is right, stuff him.

No need for aggression but there is a need to be in charge.

The judge made it clear it was the solicitor he was unhappy with so it's a lesson he must learn, not you Merlin.

There shouldn't be any further costs to you if you complain anyway.

Good luck.

ProperCharlie

Solicitor's argument wil be that their charges were fairly accrued in pursuing the client's business. All I am saying is that you can waste a lot of time, energy and money and not necessarily get anywhere. Last time I fell out with a solicitor over costs I offered them a %age of their bill and they accepted. Only took one letter, everything sorted and everyone reasonably happy.

Alpine99

I would 'propose to decline his invitation'.. The wording suggests to me that he knows he's trying it on..

Spoon

Charlie- If a judge points out that he did work that wasn't necessary and could have been carried out by somebody else at a reduced rate then I reckon his invite can be politely declined.

merlin

Thanks for the information. It was a private client contract. The award was £14.5k and the part 36 was £13.5k. My solicitor was well aware that he could claim indeminity so he wasn't negligent in that regard. However there are serious omissions in my special damages claim and his advice regarding costs appears to have been negligent. I'm going to put those points to him and if he is unhelpful then I will be in contact with the partner who deals with complaints.

[Edited by merlin - 8/11/2003 7:43:20 AM]

Nimbus

I think Alpine has a point. He's not telling you you have to pay it "You owe me £800. Pay by end of the month". He's inviting you to pay it "would you like to send me £800?"....

[Edited by Nimbus - 8/11/2003 4:37:17 PM]