‘Informed consent’ debate rumbles on
The question of what information needs to be provided to a personal injury client for them to consent to their solicitor deducting costs from damages is set for the Court of Appeal.
Lord Justice Males has granted permission to appeal the ruling last October in Belsner v Cam Legal Services Ltd. Mr Justice Lavender said, to obtain informed consent, law firms had to spell out in detail in their retainers the costs clients could be liable for beyond what was recovered, even if that liability was voluntarily capped, rather than just warning in broad terms of a potential liability.
But another ruling has emerged in which a regional costs judge in Birmingham decided that a solicitor telling a client that they would deduct up to 25% of damages to cover costs not recovered amounted to informed consent.
District Judge Rouine was dealing with 15 test cases from a group of more than 400 Slater & Gordon matters on the same point.
He distinguished his decision from that of Mr Justice Lavender because the retainer in that case did not cap the deduction.
In Swann v Slater & Gordon, the judge said: “The fact of the existence of a cap has a magnetic attraction to me, in the context of the concept of informed consent, for the purposes of these assessments.
“Being told that there is a cap, and what that cap might be, is more than sufficient information, in my judgment, for the purposes of obtaining informed consent from a client for deductions to be made from their award of damages.”
DJ Rouine added: “It seems to me that the deduction from damages is part of the price which the client has to pay to secure the solicitor’s service.
“Incidentally, I do not, in the context of any of these points of dispute, accept that there is an obligation on the part of any solicitor to explain to a prospective client that there may be different or alternative terms on offer from other alternative legal practices.”
Government eyes fixed costs and more wasted costs orders in immigration cases
The government is considering introducing fixed recoverable costs for immigration-related judicial reviews, as well as encouraging more wasted costs orders.
The ideas formed part of a Home Office consultation on reforming the immigration system.
Most judicial reviews are immigration-related and the consultation said they racked up “considerable” legal costs, with the government rarely able to recover costs when it won.
“As part of our measures to promote fairness, certainty and balance to the way in which costs are incurred in these cases, we are considering extending ‘fixed recoverable costs’ to apply to immigration-related judicial reviews.”
It went on: “We are also considering introducing reforms to encourage the use of wasted cost orders (WCO) in immigration and asylum matters by the court. To achieve this, we propose to introduce a duty on the immigration and asylum chambers of the First-tier Tribunal and Upper Tribunal to consider applying a WCO in response to specified events or behaviours, including failure to follow the directions of the court, or promoting a case that is bound to fail.
“While the grant of a WCO is at the sole discretion of the judge, we are considering introducing a presumption in favour of making one. In addition, as WCOs only cover the costs of the parties to the claim, we are also considering introducing a mechanism to cover the court’s costs.”
Easter break
The Costs Lawyer eBulletin is taking a break over Easter and will be back in a fortnight.