Costs judge refuses to order disclosure of call recordings in latest deductions challenge

1 November 2023

A costs judge has refused to order disclosure of call recordings made by a claimant law firm in the latest ruling on challenges to deductions from damages.

In Turner v Coupland Cavendish Ltd [2023] EWHC 2721 (SCCO), Judge Rowley said he was ruling on three preliminary issues in six cases involving the same lawyers which would then proceed individually.

The first was over the disclosure of call recordings, which the claimant said were vital in relation to funding and would show whether time recordings of the calls were accurate. By referencing in a call script on the file that calls were being recorded, they should be capable of disclosure, he argued.

The defendant said its file had been disclosed and call recordings were not stored on the file.

Judge Rowley agreed with the law firm. “CPR 31.14 says that a party may inspect a document mentioned in a statement of case, a witness statement, a witness summary or an affidavit. That is a restricted group of documents which all share the quality of having been produced specifically for service on the opponent (as well as filing at the court).

“Documents referred to in such a statement or affidavit would obviously have been disclosed in a document which itself could count as evidence before the court. Those documents are a world away from a reference in a script on the client’s file referring to the fact that the calls between the solicitor and client would be recorded.”

He went on to reject an application for specific disclosure of the calls, noting that the claimant had not explained why they might be useful to his case.

He added: “Locating such recordings, as well as the time spent by the parties listening to the recording to check its length and whether it all related to the call in question is, in my view, a transparently disproportionate approach to a detailed assessment.”

Judge Rowley further considered that, even if the recordings were to be treated as on the file, they were the property of the solicitor, not the client, describing them as “a defensive mechanism” and “analogous to notes written by the solicitor for his own benefit in the file”. That meant they did not have to be disclosed with the file.

The second issue was whether he should order the defendant to respond to part 18 requests about secret commissions from after-the-event insurers.

Again, Judge Rowley refused to do so. There was a “complete lack of evidence” regarding alleged commissions which would justify part 18 requests being answered – and in any event, he had not seen the actual requests.

“It seemed odd to me, but seemingly not to the parties, that I was asked to make orders requiring the defendants to respond to part 18 requests without any of those requests being before the court…

“Procedurally, it seems to me that this application cannot possibly succeed. Whilst there is no equivalent provision to the one concerning the need for specific disclosure to be sought via a formal application with evidence, it would be a woeful position for a court to order questions to be answered which it had not even seen.”

Judge Rowley distinguished this case from Raubenheimer – in which his refusal to order the defendant to respond to part 18 requests about secret commissions was overturned on appeal – because, in that case, there was evidence to support the suspicions.

The third issue, which only applied to this claim, was the claimant’s bid to find more about a Gibraltar based company, AJG Ltd, to which the defendant paid £750.

The claimant asked the defendant for the company number so as to make enquiries of Companies House in Gibraltar. The defendant said it could obtain that information by paying £10.

Judge Rowley said the issue “has expended far more than the cost of the search etc” and described it as “a rather dispiriting display of the parties failing to observe their duty in CPR part 1 to assist the court in achieving the overriding objective of dealing with the case justly and at a proportionate cost”.

He continued: “It does not seem to me that, as a general principle, the defendant has to provide information about third party companies where such information can be obtained elsewhere. The fact that it would have been much simpler and cheaper all round if it had done so simply has costs consequences.

“Therefore, whilst I am not going to make the order the claimant seeks in this respect, I am also not going to make any order for costs in the defendant’s favour for declining to assist.

“Furthermore, if the claimant is ultimately successful in respect of the apparent dispute in relation to the cash account, I will entertain a submission that the costs of the correspondence etc are recoverable, notwithstanding that they have not been allowed by the order in this application.”

Mark Carlisle (instructed by JG Solicitors) for the claimant. Mark Brighton of Kain Knight (North & Midlands) Ltd for the defendant.

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01 Nov 2023

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