Ignoring costs lawyer earns judicial rebuke in fee dispute

Master Leonard says Brethertons should have given Kerry-Anne Moore ‘the same professional courtesy as a solicitor’.

A costs judge has criticised a firm that ignored a costs lawyer acting on the opposing side in a case concerning fees in a personal injury matter. Master Leonard said south-east firm Brethertons LLP, the defendant in a potential claim over fees, refused to comply with a request from Kerry-Anne Moore not to contact the claimant directly.

Moore, a costs lawyer employed by recovery firm checkmylegalfees.com, had written to Brethertons in October 2017 requesting copies of documents from their file. But even after the file had been released and the claimant’s application for delivery of a bill of costs filed, Brethertons still encouraged the claimant to deal with the firm directly.

In a footnote to Allen v Brethertons LLP, Master Leonard said Moore was regulated by the Costs Lawyer Standards Board with the right to conduct litigation and to exercise a right of audience. She had identified herself as such from an early stage and asked the firm to communicate with her, as is consistent with the provisions of the code of conduct.

The judge said it was not a matter for him whether Brethertons had complied with the code: ‘But I would offer the view that Ms Moore, when acting as a costs lawyer with a right to conduct litigation, is at least entitled to expect from the defendant the same professional courtesy as a solicitor would expect. It does not seem to me that she has received it.’

The judge made the order for delivery of the bill sought by the claimant, who had settled a personal injury case for £7,146 in October 2016 and received around £5,290 after deductions.

Master Leonard said the claimant had a statutory right to challenge the firm’s charges by an application for detailed assessment, and he could not exercise that right until a final, complete bill had been delivered to him.

The judge added: ‘It is for him to decide whether to make such a challenge. It is not for the defendant to say that he should not have the choice.’

The case, and Brethertons’ refusal initially to engage with the costs lawyer, feeds into a wider dispute between firms attempting to recover fees and those firms that have taken deductions from damages. Many such cases are ongoing, with the courts trying to establish rules for disclosure and whether fees were appropriate.

The Association of Costs Lawyers welcomed ‘clear and unequivocal’ confirmation of its members’ status. Incoming president Claire Green said: ‘We expect our solicitor colleagues to show us the same professional respect that we show them.’

Brethertons had not responded to requests for comment as the Gazette went to press.

This article was first published in The Law Society Gazette on 8 October 2018.

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15 Oct 2018

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