KA-2023-000225 - [2025] EWHC 1605 (KB)

The Respondent, submitted that the appeal arises from a case management decision made by the Costs Judge and as such, proceeds by way of a review further to the test set out in CPR 52.21(3). Appeals from case management decisions are subject to a high threshold (see Royal & Sun v T&N [2002] EWCA Civ 1964).

The Respondent argued that the Costs Judge was correct to refuse the Appellant's two oral applications, albeit foreshadowed by informal correspondence and the Appellant's Skeleton argument.

In respect of the Part 18 request application, the Respondent contends that it failed procedurally due to the absence of a formal application notice, supported by evidence, setting out the specific requests and the reasons why answers were required. The Respondent's position now, echoing the observations of the Costs Judge, is that it was not for a court to order questions to be answered that it had not seen. Given the observations made by the Costs Judge to which I have referred earlier this does not appear to have been a point which was pressed upon him by the Respondent at the hearing itself. In oral argument the Respondent sought to rely upon the well-known principle set out in the case of Ladd v Marshall [1954] 1 WLR 1489 to argue that seeking to introduce the request would offend the principles set out in that case. That does not seem to me to be an authority which is engaged in the present case. It simply does not concern the admission of fresh evidence on appeal. The Respondent had received the request in advance of the hearing and took no point about a procedural failing before the Costs Judge. Presumably the relevant document could simply have been shown to the Costs Judge at the hearing.

The Respondent asserted that the function of a Costs Judge in an assessment under section 70 of the 1974 Act did not extend to adjusting the cash account for alleged secret commissions in an ATE premium, relying on Herbert, so that the information sought via Part 18 was outside the scope of the assessment proceedings; a submission which lies uneasily with the decision of Ritchie J in Edwards/Raubenheimer. Further, it was argued, the matters raised in the points of dispute by the Appellant all went to the success fee rather than the ATE premium at which the Part 18 requests were directed. If there had been a secret commission there was a duty on a solicitor to say so and it was sufficient that the Reply to the Points of Dispute asserted that the cash account was complete, that is to say that there was no undisclosed commission. A blanket Part 18 request in the absence of a commission was not permissible and Edwards was not authority for the proposition that all Part 18 requests had to be answered as a matter of course. That, it was said, would amount to “tarring all solicitors with the same secret commission brush”.

The Respondent submitted that the facts of Edwards are distinguishable since in that case the Claimant's representatives had obtained information from the ATE insurer's administrators showing payments to an affiliate of the Defendant solicitor, providing evidence to support the Part 18 request. The Respondent suggested that there is a contrast between that situation and the circumstances of the present case, where no such evidence of any impropriety or undisclosed commissions has been presented.

The Respondent drew attention to the comments in Brown, to the effect that the circumstances in Edwards were sufficiently unusual to limit its application to its specific facts. In more usual circumstances, where there is no evidence before the Court that any commissions are paid by an insurer, it would be inappropriate to require a solicitor to answer generic Part 18 questions, as this would plainly constitute a "fishing expedition".

In relation to the application for information on the Gibraltar company, the Respondent submitted that it also failed procedurally due to the lack of any evidence, including documents, being put before the Costs Judge. Furthermore, the Respondent argued that the decision in Yasuda does not provide the Appellant with an entitlement to wide-ranging access to the Respondent's records in the absence of the Appellant putting forward a positive case in support of the application.