The costs recovery outfit chasing personal injury firms on behalf of former clients has suffered another major set back.

In Brown v JMW Solicitors, Costs Judge Rowley turned down a Part 18 request from (CMLF) for details of an ATE insurance policy arranged for its client James Brown following settlement of his previous PI claim.

Rowley said that in the absence of any stated suspicion about the insurance costs, let alone evidence to support it, the questions posed by the claimant were a ‘paradigm example of a fishing expedition’.

CMLF had sought to challenge the £644 which appeared on a costs invoice for £14,378. Lawyers for the claimant said the insurance arrangements were ‘less than clear’ and that JMW’s refusal to provide a copy of the policy had left them no option but to serve the Part 18 request to establish who the insurer was and whether any intermediaries received any commission.

They relied squarely on the decision of Mr Justice Ritchie in Raubenheimer to order full disclosure of any commissions that had been paid as part of the ATE premium. That challenge to the premium is likely to be determined in the Chancery Court.

Rowley’s decision had been overturned in Raubenheimer but he noted in Brown that Ritchie had stated that the case had not raised any important point of principle or practice.

The costs judge said that the claimant’s lawyers in Brown were asking for an order without having to provide any evidence of impropriety. They had argued they were in a Catch-22 situation of needing information from the defendant in order to be able to put forward their case, but having to set out their case to get that information.

Rowey said: ‘It is a basic tenet of litigation that he who asserts must prove. In the situation before me, the claimant’s position is that he does not even need to assert let alone prove a commission may be in issue. There must be many situations where a party considers that an opponent has possibly caused him some loss but has no evidence as such. In the absence of any proof to support that suspicion, then proceedings cannot get off the ground.’

This was the latest setback for in the space of two weeks, following the Court of Appeal's ruling in Belsner on the issue of fair and reasonable deductions from damages.

In the Belsner ruling, master of the rolls Sir Geoffrey Vos said former clients of PI firms would be better going to the legal ombudsman to register a complaint, rather than instructing solicitors.

Rowley’s ruling in Brown echoed this suggestion, saying that the relevant regulators would have ‘come to the claimant’s aid’ if they received a complaint about a policy taken out.

‘[The claimant] has not produced any evidence of an unsuccessful approach to bodies such as the Solicitors Regulation Authority or the legal ombudsman,’ added Rowley. ‘There is nothing to suggest that any such avenues of assistance have been explored.’


This article is now closed for comment.