James Brown v JMW Solicitors LLP

A claimant seeking Part 18 answers in solicitor-client assessment proceedings must show more than a general suspicion. The court should require evidence supporting an arguable case before compelling answers about possible commissions or other matters that may support a different claim. An earlier decision ordering answers on materially different evidence was confined to its unusual facts. The overriding objective and proportionality also require caution before separating issues concerning an ATE premium for determination elsewhere.

The claimant brought Part 8 proceedings under section 70 of the Solicitors Act 1974 to challenge elements of a solicitor’s bill. He sought an order requiring answers to a Part 18 request concerning the identity of the ATE insurer, intermediaries, premium payments and possible commissions.

He relied on Ritchie J’s decision in Raubenheimer v Slater & Gordon UK Limited, concerning similar requests and alleged secret commissions. The defendant contended that Raubenheimer was factually distinguishable and that the threshold for a Part 18 order had not been met. The central issue was whether the claimant had supplied sufficient evidence of an arguable case to justify compelling answers before detailed assessment.

1. Application dismissed. The claimant was not entitled to an order requiring the defendant to answer the Part 18 request.
2. Under CPR 18.1, a Part 18 request must clarify a matter in dispute or provide additional information concerning such a matter. Where the request seeks information about a possible commission or other basis for a further claim, the claimant must provide evidence supporting an arguable case. The threshold is analogous to that applicable to pre-action disclosure.
3. Raubenheimer v Slater & Gordon UK Limited was materially different. There, evidence obtained from the ATE insurer’s administrator supported suspicions that payments had been made to a third party and raised a dispute about whether they amounted to a secret commission. Those unusual circumstances confined the effect of Ritchie J’s decision. They did not justify generic questions in the absence of evidence in the present case.
4. The fact that insurance companies may have varied claims-handling arrangements, or that commissions may occur in other cases, did not provide evidence of an arguable case against this defendant. The claimant’s request was therefore a fishing expedition.
5. Although a dispute concerning the cash account might potentially be addressed when the cash account was determined, the court had to consider the overriding objective and proportionality. Before hiving off any issue concerning the ATE premium to the Chancery Division, the claimant needed to establish an arguable case.
6. The parties accepted, following Herbert v HH Law, that the amount of an ATE premium could not be challenged through the convenient assessment mechanism under section 70 of the Solicitors Act 1974. That did not remove the evidential threshold applicable to the Part 18 application.
7. In relation to the abated brief fee, neither party was more blameworthy in causing the costs. The costs were ordered to be in the case.

Not stated in the judgment. The judgment refers to the earlier decision in Raubenheimer v Slater & Gordon UK Limited and its appeal, [2022] EWHC 1091 (QB), but the present decision was made at first instance.