Overton v Horder [2008] EWHC 90109 (Costs)

Posted on Monday, July 28th, 2008

This was a matter where the Defendant challenged the Claimant’s AAH CFA.

Following an accident where the Defendant rode his motorcycle into the side of the Claimant’s car and the Claimant sustained injury, the Claimant was referred to her Solicitor by Accident Advice Helpline (AAH). An insurance premium was purchased from AAH on 05/07/02 and a CFA was entered into on 08/07/02.

The Defendant alleged that the Claimant’s Solicitor had failed to comply with the Conditional Fee Agreement Regulations 4(2)(e)(ii) in that they had failed to fully explain their obligation to the Claimant in recommending the insurance premium and that their failure to do so would result in the solicitor being removed from the panel. Therefore the CFA was unenforceable. The CFA stated that that the solicitor had no interest in recommending this particular policy of insurance, however, they were a member of the AAH panel.

Both the CFA and the AAH Panel Solicitors Manual had been disclosed but there was no witness evidence filed on behalf of the Claimant.

It was submitted by the Claimant that the Defendant’s error was in considering whether the Claimant’s Solicitor had an interest in referrals, rather than insurance and therefore any interest in the insurance was the declaration the Regulation required.

As in the case of Garrett, it was maintained by the Claimant that there had been no obligation to take out the insurance premium or else be removed from the AAH panel. The Claimant submitted that if membership of a panel created an interest, this would mean that a referral scheme which did not require any ATE insurance and left the Panel Solicitors free to choose any ATE premium they wanted, would give rise to a declarable interest in whichever ATE premium they recommended.

Master Rodgers found in favour of the Claimant and held that there was no evidence that the Claimant’s Solicitor would have lost its panel membership if they had not recommended this insurance premium and it was not obligatory that they do so. Only general guidance could be taken from guidance and that each case should be considered on its individual facts.

http://www.bailii.org/ew/cases/EWHC/Costs/2008/90109.html

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