Marcin Tadeusiak v MIB (Liverpool CC)
We disputed the recoverability of the claimant’s ATE premium due to his failure to use the benefits of his pre-existing BTE cover.
We successfully sought an order that the claimant provide full disclosure in relation to the existence of BTE and the checks made into its existence. The claimant failed to comply with the court’s order and the defendant applied to enforce the same. The claimant contested the application on the grounds that the original order was ultra-vires in any event, and that the court did not have the power to order the disclosure sought.
We argued that in not complying with the order, the claimant had failed to progress the matter and was in breach of the overriding objectives, and that the court has the power to order disclosure under CPR 31.12(1).
DJ Henthorn agreed with our submissions and ordered compliance with the order for full disclosure, as well as awarding us our costs in the sum of £885.70.
This was a BTE application which took place before DJ Henthorn. The substantive case was an MOJ matter that settled for £2130.00. All costs were agreed save for the ATE premium. This item was being disputed as the claimant failed to opt for free LEI which was available through the MIB. In addition, the defendant was able to establish pre-existing BTE cover after making one routine telephone call.
The claimant issued part 8 proceedings and our costs team filed an Acknowledgement of Service. Following our proposal, the court ordered that the claimant provided full disclosure in relation to the ATE premium and any checks made into the existence of BTE cover, within 14 days. Despite being chased on three separate occasions, the claimant failed to comply. As a result, we made an application to enforce the court’s order.
Compass Costs contested our application for a number of reasons. They argued that because the part 8 proceedings had concluded with the order above, the court did not have the jurisdiction to hear the defendant’s application. There were no detailed assessment proceedings and the defendant’s application could not take place in a “vacuum.”
They further argued that the original order was ultra-vires in any event, and that the court did not have the power to order the disclosure sought. They submitted that all the court could do was put the claimant to election once the detailed assessment proceedings had been engaged. Compass relied on Pamplin –v- Express Newspaper and Cole v NGN in this regard. Compass also argued that the original order was “too vague” and “too broad” to enable “proportionate compliance.”
Our position was that the claimant had failed to progress this matter and further the overriding objective in breach of CPR 1.3. No attempt had been made to vary or appeal the court’s order, which was made 5 months earlier and the claimant had failed to commence detailed assessment in breach of CPR 47.7. The application would enable the court to progress and actively manage the case pursuant to CPR 1.4(1) and (2). We therefore invited the court to use its general powers of management under CPR 3.2(2)(m) to compel the claimant to comply with the original order.
In relation to the jurisdiction of the court, we argued that the court has the power to order disclosure of specific documents under CPR 31.12(1). If the claimant had complied with the court order the defendant would have a right to inspection under CPR 31.3. It would then be for the claimant to establish why inspection should not take place, for example by making claims of privilege, which the court could then consider.
We submitted that it was not necessary for the court to consider the Pamplin procedure or s40.14 of the Costs Practice Direction. In making the order, the court was not exercising its power under that section but was instead applying CPR 31. The court had the jurisdiction to hear applications after an order for detailed assessment had been made. If the claimant’s argument was correct, then defendants would be unable to make applications under, for example, CPR 47.8. We did not accept the claimant’s argument that orders of the court need to include provisions for liberty to apply before they can be enforced. If the claimant’s argument was correct then the vast majority of judgments would be unenforceable.
DJ Henthorn found in our favour. He ordered compliance with the order and full disclosure in relation to the ATE premium and any checks made into the existence of BTE cover by no later than 6th January 2012. He awarded us our costs in the sum of £885.70.
Since DJ Henthorn’s order, the claimant’s solicitors have discontinued the claim and agreed to pay us part 8 costs, which are estimated at £800.00.
