The Court of Appeal yesterday scrapped its hearing in CAM Legal v Belsner after the issue of whether work done under the pre-action protocol is contentious or non-contentious business.
A new hearing is to be arranged before 31 July, with a time estimate of two days and a third day available if needed. The Senior Costs Judge, Andrew Gordon-Saker, is to be invited to sit as an assessor.
The one-and-a-half-day appeal by CAM Legal was hotly anticipated to determine the issue of informed consent to deductions from damages.
On the first day of the hearing, the Master of the Rolls, Lord Justice Vos (pictured), suggested that work done under the pre-action protocols was contentious business, in the face of the established position that – for the purposes of Solicitors Act 1974 assessments – it is actually non-contentious.
Many claimant solicitors handling low-value personal injury claims use a contingency fee agreement for pre-issue work and a conditional fee agreement once the claim is issued; finding that pre-action work is contentious business would make the former unlawful and unenforceable.
Joining him on the high-powered bench were the Chancellor of the High Court, Lord Justice Flaux, and Lord Justice Arnold.
CAM Legal and the Law Society, which is intervening in the case, made written submissions on the issue overnight and, at the start of the second day, Vos LJ said he considered that the “ramifications are more profound than appeared at the start of the case”.
As a result, the court was concerned that there was insufficient time left for argument.
He put the issue into the wider context of the move to online courts and his goal of creating “a coherent civil justice system, of which the pre-action portal stage is incredibly important”.
Vos LJ went on: “If it is a non-contentious space, so called, then we need to understand the ramifications of that.”
He added that, if the appeal was upheld, the court was “not inclined” to send the case back to the district judge but to reassess the costs on the correct basis so as not to delay matters any further.
The court heard that there were 900 cases stayed awaiting the outcome of this test case.
Costs Lawyer Nick McDonnell, a director of Kain Knight (North & Midlands) Ltd, acts for CAM Legal. He said: “After a challenging day one, the appellants are very pleased that the Lord Justices have reflected overnight on the points of law regarding contentious and non-contentious business in accordance with the Solicitors Act 1974 and seem to now fully appreciate the appellant’s case.
“We are certainly in test case territory and the potential ramifications across the legal profession continue to become clearer.
“The Master of the Rolls also accepts the case has developed through no one’s fault. That being the case, it is not surprising the Court of Appeal has taken the unusual step to adjourn the hearing on day two and to relist the case…
“We are looking forward to being afforded the time to fully set out the appellant’s arguments orally at the adjourned longer hearing in due course so that a fully reasoned judgment can be reached.”