Robinson-Tait & Anor v Cataldo & Anor [2010] EWHC 90166 (Costs)

Posted on Wednesday, May 5th, 2010

C applied for relief from sanctions for failure to fully comply with the requirements of the Costs Practice Direction as to the giving of a Notice of Funding.

C’s Solicitor had acted for them since the Summer of 2003 whilst at three different firms of Solicitors, under three different CFA’s. The final CFA was entered into in November 2006 and an ATE policy was taken out on 31st July 2007. Proceedings were issued in November 2007 and served in February 2008. There had been no pre-action correspondence with D for fear that D would apply to the Italian courts. The claim settled in April 2009 for £80,000.00 plus interest and costs.

The N251 was served with the proceedings and contained details of just the third and final CFA. No mention was made of the ATE premium which was staged and totalled just over £19,000.00. C’s Solicitor could not explain why details of the ATE premium had not been transcribed from his draft to the formal notice and he believed, erroneously, that he only needed to give notice of the extant CFA and not of the historic ones.

D argued that there was no good explanation for the failures to provide the required information as to funding and that they had suffered significant prejudice in the form of an information imbalance between the parties.

C had written to D on 14th July 2008, stating that C had been advised by other firms under a CFA and that C had an ATE policy. C’s Solicitor wrote again on 23rd October 2008, identifying QBE as the ATE insurers and explaining that it was a staged premium.

Held: CPR 3.9 gave a list of factors, all of which had to be considered, but none of which was a pre-requisite for the grant or refusal of relief. It was not necessary to give a good explanation for failure to comply with the rules in order to benefit from relief from sanction, but the quality of the explanation and the degree of prejudice suffered by the opponent could be determining factors. In the present case, the mistake as to the earlier CFA’s was small (approx. £4,000). The mistake in relation to the ATE premium was much larger but caused D no prejudice and was remedied within a few months of commencement and before the compromise was agreed. The administration of justice was not jeopardised, nor were the mistakes intentional. The Solicitor’s compliance with other rules, practice directions and Orders could not be criticised. Full relief against sanctions granted. Supperstone –v- Hurst [2008] EWHC 735 (CH) and CIBC Mellon Trust Co –v- Stolzenberg [2004] EWCA Civ 827 considered.

http://www.bailii.org/ew/cases/EWHC/Costs/2010/90166.html

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