Ibbertson v MFI & Ors [2009] EWHC 90132 (Costs) (30 January 2009)

Ibbertson v MFI & Ors [2009] EWHC 90132 (Costs) (30 January 2009)

The Conditional Fee Agreement was unenforceable because the solicitors failed to make a full and clear disclosure of their interest in recommending the insurance policy, as required by the Conditional Fee Agreements Regulations 2000 and as interpreted by the Court of Appeal in Tankard. The CFA's statement that there was no interest, when there was at least a potential interest, meant there was no clear disclosure. The breach was not merely technical but material, affecting consumer protection. Additionally, it was unreasonable for the Claimant to instruct London solicitors in the absence of evidence justifying not using local solicitors.

Citation
[2009] EWHC 90132 (Costs)
Parties
Claimant: Nicola Ibbertson; 1st Defendant: Peter Sampson; 2nd Defendant: MFI & Howdens Joinery
Jurisdiction
England and Wales
Judgment Date
30 January 2009
Procedural Posture
Costs Assessment (detailed Assessment) / Judgment on Enforceability of Conditional Fee Agreement and Reasonableness of Instructing London Solicitors
Outcome
Conditional Fee Agreement declared unenforceable; costs assessment would proceed on Southampton rates if relevant.
Legal Topics
Conditional Fee Agreements, Disclosure of Interest, Consumer Protection, Reasonableness of Instructing Solicitors
Civil Procedure Costs Conditional Fee Agreements Disclosure of Interest Consumer Protection Reasonableness of Instructing Solicitors

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Parties

Nicola Ibbertson

Claimant

Peter Sampson

1st Defendant

MFI & Howdens Joinery

2nd Defendant

Procedural Posture

Costs Assessment (detailed Assessment) / Judgment on Enforceability of Conditional Fee Agreement and Reasonableness of Instructing London Solicitors

Legal Issues

  1. 1 Whether the Conditional Fee Agreement (CFA) was enforceable given alleged non-compliance with the Conditional Fee Agreements Regulations 2000 regarding disclosure of interest in recommending insurance
  2. 2 Whether it was reasonable for the Claimant to instruct London solicitors rather than local solicitors

Ratio Decidendi

The Conditional Fee Agreement was unenforceable because the solicitors failed to make a full and clear disclosure of their interest in recommending the insurance policy, as required by the Conditional Fee Agreements Regulations 2000 and as interpreted by the Court of Appeal in Tankard. The CFA's statement that there was no interest, when there was at least a potential interest, meant there was no clear disclosure. The breach was not merely technical but material, affecting consumer protection. Additionally, it was unreasonable for the Claimant to instruct London solicitors in the absence of evidence justifying not using local solicitors.

Court Disposition

Conditional Fee Agreement declared unenforceable; costs assessment would proceed on Southampton rates if relevant.

Orders

  • The Conditional Fee Agreement dated 21 January 2005 is unenforceable.
  • If assessment proceeds, hourly rates allowed will be those of Southampton solicitors, not London rates.