Faisel v Lancashire County Council – Administration of solicitors

The other day I posted a link to a website showing some case summaries of various first instance decisions. One angry reader commented: “I’m surprised this is publicised on the blog as useful case summaries – will we now all be submitting every DJ decision and taking it as Gospel?”

I see no reason to interfere with the long-established tradition amongst law costs draftsmen and costs lawyers to treat a decision made late on a Friday afternoon by a Deputy District Judge, sitting in Worthing County Court, on the appropriate grade of fee earner to allow in a public liability tripping claim, as being binding on all other members of the judiciary for similar claims. Indeed, surely there is no need to even produce a copy of a judgment or transcript, one can simply tell a judge that: “Costs Officer So-and-So always allows me a rate of £200 per hour for this type of case” and the judge will be obliged to allow the same.

Of course, aside from the issue of whether first instance decisions are binding or not, there are often no higher authorities on a given issue of costs law. Therefore these decisions can often throw useful light on the various arguments that can be run, and a well delivered judgment can provide an extremely helpful summary of what can otherwise be quite complex issues.

With the above in mind, here is a link to the interesting decision in Faisel v Lancashire County Council, Preston County Court (25 May 2012) concerning the situation where the original firm of solicitors ceases to act following them going into administration. Where they are acting under a CFA, are their costs recoverable at the conclusion of a case? This issue usually comes down to a question of analysis of the terms of the CFA that deal with termination of the agreement before the successful conclusion of the claim and how the Court determines the agreement was ended.

Here the District Judge appears to have concluded, although not exactly expressing himself in these terms, that it was the decision of the Claimant to terminate the original agreement (notwithstanding the fact that the original solicitors were already in administration), and the terms of the CFA therefore allowed for the solicitors to recover their costs in this situation.

Thank you to Paul Tidman of County Cost Consultants for providing a copy of this judgment.

7 thoughts on “Faisel v Lancashire County Council – Administration of solicitors

  1. Great. A judgment where the judge doesn’t even appear to understand the difference between administration and liquidation or the point at which a company ceases to be a legal entity and appears to have no regard to the law as to equitable as opposed to legal assignment.
    At least it does serve to prove the point about the danger of relying on first instance decisions …

  2. Judge Turner is the RCJ for Lancashire and very good at it too.

    regrettably on this instance I disagree with his finding, but that being said, the points put forward by the Defendant were couched wrong and missed vital points. The retainer ended by the solicitors actions, and as it is not covered by the termination clauses, the cfa invalidates from day 1.

    I have run this argument successfully in many courts – unlike certain draftsmen here however, I do follow what the COA have given clear guidance upon regarding the status of cases in each level of court. I truly hope i catch one of the readers here trying to pull a county court decision out at DA on me!

  3. Can Anonymous please identified him/herself to prevent me pulling a county court decision out at DA?

  4. Re Anonymous’ comment:
    I’m sure RCJ Turner is an excellent RCJ. Sadly, issues of company law, contract law and equity are often outside the provinces of even the best Cost Judge (or costs lawyer) as some of the decisions in the SCCO have proven over the years.

    There are good reasons why we have rules of precedent and a practice direction which generally forbids the citation of first instance judgments – even from costs judges and even if it is often honoured more in the breach than the observance

    Anon – the first Anon, not the second one (all these Anons could become a little confusing).

  5. Possibly settled the Cost Lawyer v Cost Counsel argument & goes to show technical arguments should be left to Counsel !

  6. which fool goes to a DA without knowing the issues (obviously answered in the transcript of the first instance Judgement referred to in the article)

    Costs Lawyer -v- Costs Counsel?? No, a good costs draftsman, less pretentious as to their ability as they dont have the title to worry about (still loving the fact Costs Lawyers think they can advocate because they sat through a days lecture on it haha)

  7. Well having now read the judgment, the criticisms of it are too general to persuade me that the judge was wrong. What actions by the solicitor ended the retainer? On the judge’s analysis of the facts, that just doesn’t stack up I’m afraid. And the difference between administration and liquidation, was the judge’s explanation wrong, and if so, in what way?

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