May 9th, 2014

Court of Appeal considers time-limited offers

Saigol v Thorney Ltd (T/A/ Thorney Motorsport) [2014] EWCA Civ 556

The Court of Appeal considered the relevance of an offer to settle which was only left open for acceptance for a period of 22 hours.  S had taken his 20-year old BMW to T for it to be modified for use in racing.  T subsequently sought more than the agreed price of the work and refused to return the vehicle pending payment.  S failed to pay and T advertised the car for sale.  S successfully secured an injunction and issued proceedings for damages.  T brought a counterclaim.

The parties attended a mediation, which was ultimately unsuccessful and T made an offer to accept £2,000.00 the following day, which was open for acceptance for a period of 22 hours only.  The matter proceeded to trial and for reasons that are unapparent from the judgement the trial of this straightforward, low-value dispute was allowed two days of Court time before a circuit judge.  The trial judge found for S against T for £745 of his claim and for T against S for £375 of its claim: T would therefore pay a balance of £370 to S.  On the question of costs, the trial judge considered the claim to be a draw and had found that the parties had advanced financial claims of ‘unjustified magnitude’, but ordered S to pay T’s costs from 21 days after T’s offer as S had failed to better it.  Notwithstanding the limited sums in issue in the claim itself, S sought legal costs of £67,000 and T sought legal costs of £77,000.  S successfully appealed the order as to costs.  Rimer LJ found that: ‘those who are really serious about achieving [settlement] do not make offers that are open for just 22 hours and should receive no credit for making offers that are so time-limited’ and substituted the trial judge’s order for one of no order as to costs, leaving the parties to bear the £144,000 in legal costs apparently incurred.

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October 2nd, 2013

Cooper v Robbins – Inaccurate Bills of Costs

Brodie & Company recently acted for the paying party at the detailed assessment and on the subsequent appeal in the case of Cooper v Robbins.  On appeal HHJ Raynor QC found that the Claimant’s solicitors had recklessly misstated the level of fee earners who worked on the case and that the appropriate sanction for such misconduct would be to reduce what would otherwise be payable in respect of the profit costs by 75% pursuant to CPR44.14.  A copy of the judgment on misconduct is available here:

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July 10th, 2013

The ‘Doorstep Regulations’ and Defective CFAs

Ridge v Lupton & Place Limited

DJ Obodai, Manchester County Court

Following the successful settlement of the Claimant’s claim for damages against his former employer for noise induced hearing loss in August 2011, the case was listed for detailed assessment of the Claimant’s costs.

It became apparent that the Claimant’s conditional fee agreement had been signed at his home, and the Defendant raised the issue of compliance with the Cancellation of Contracts made in a Consumer’s Home or Place of Work etc Regulations 2008 and contended that unless the CFA agreement incorporated a cancellation notice in the appropriate format, the agreement was unenforceable.

The Claimant’s solicitors, MRH Solicitors of Bolton, did not admit any potential defect, but instead entered into a new CFA with the Claimant in March 2013.  This rescinded the earlier CFA and applied retrospectively to cover all work done from the date of the Claimant’s initial instruction.  The agreement was concluded by post in order that the 2008 Regulations would not apply.

The Defendant argued that while retrospective CFAs and uplifts were permissible in certain circumstances, in the present case the Claimant’s attempt to rectify the defective retainer should fail. If at the time of the adverse costs order there had been a defect in CFA rendering it unenforceable, such that the defendant had no liability under that costs order, that defect could not be abolished by a retrospective agreement.  The retainer could not be changed to increase the costs burden on the paying party after the adverse costs order had already been made.

The District Judge accepted the Defendant’s argument, and found that the retrospective CFA was not effective and did not alter the Defendant’s liability for costs.  The Claimant’s profit costs were assessed at nil and the Claimant recovered only disbursements, paying the Defendant’s costs of the detailed assessment.

Brodie & Company were instructed to deal with the question of costs on behalf of the successful Defendant.

Hugh Rimmer (counsel for the Defendant)

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May 17th, 2013

Scandalous sentence for cyclist killer

Gary McCourt was found guilty of causing the death of Audrey Fyfe, 75, in August 2011 by careless driving. He was sentenced to only 300 hours of community service and a 5-year driving ban.  This was not McCourt’s first conviction for causing the death of a cyclist, McCourt having been previously sentenced to a two-year custodial sentence for the 1985 killing of cyclist of George Dalgity in a hit and run incident.

Audrey Fyfe, a lifelong cyclist, was found by Sheriff Scott to bear no blame at all for the accident, but Sheriff Scott – taking account of matters of no legal relevance and without hearing expert medical evidence – decided that by not wearing a helmet, Audrey Fyfe contributed towards her own death.

The sentence has caused a public outcry and we share the Cyclists’ Touring Club’s (CTC) view in their letter to the Lord Advocate ( that proper regard to the issues in this case would place McCourt’s driving at the more serious end of causing death by careless driving and that the sentence handed down on 3rd May 2013 was unduly lenient in all the circumstance.

We have joined with the family to support their request for an appeal of the sentence imposed.  Audrey’s daughter, Aileen Brown asks:

How can the courts believe that a temporary restriction in [McCourt’s] choice of transport is an appropriate punishment for taking yet another life?  [McCourt] has inflicted a lifetime sentence of irreplaceable loss on our family and friends.  Sadly, mum won’t be back in 5 years’ time.  Our lives will never be the same …. The Sheriff also stated that in his opinion, mum not wearing a helmet contributed to her death.  Wearing a helmet is not a legal requirement.   If McCourt had hit a pedestrian, would the Sheriff have suggested they too should have been wearing a helmet?

If you wish to support the campaign for a stronger sentence for McCourt please follow this link:

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January 21st, 2013

Court of Appeal considers the 2008 Cancellation of Contracts Regulations:

The Court of Appeal determined the application of the Cancellation of Contracts made in a Consumer’s Home or Place of Work etc Regulations 2008 in the case of Robertson v Swift [2012] EWCA Civ 1794.  The contract concerned an agreement between the Claimant removal company and the Defendant customer.  The agreement was entered into over the course of two visits to the Defendant’s home and did not provide for the requisite cancellation notice.  The Defendant sought to cancel the agreement within 7 days after he found a cheaper quote from another company.  The Claimant sued for its cancellation charge, as set out in the agreement and succeeded at trial and on the Defendant’s appeal in the County Court.  Whilst the Court of Appeal expressed regret in reaching its decision, it found for the Defendant on the basis that the consequences of failing to give notice of the right to cancel in the agreement are clear and the contract was unenforceable in law.  The Court of Appeal dismissed the Defendant’s appeal for the return of the £1,000.00 he had paid by way of deposit on the basis that the Defendant was not entitled to a refund under paragraph 10(1) of the 2008 Regulations and had not suggested any other legal basis upon which he was entitled to a refund.  The Court of Appeal expressed a hope that the Regulations would be amended to avoid such harsh consequences for removals companies, as they were often small businesses and needed to attend the customer’s house to assess the work required.  Further, they may have to incur costs and turn away work in the cancellation period (in the instant case, the agreement was entered into on 28.07.2011 and the Defendant’s move was scheduled for 05.08.2011).




Posted in Commercial, Costs, Private | No Comments »

June 14th, 2012

Lance Armstrong Charged with Doping by USADA

Any hope Lance Armstrong had of a quiet life after the US Attorney’s federal investigation into him was dropped, looks to have been scuppered for the foreseeable future.  USADA have given Lance Armstrong, Dr Michele Ferrari and Johan Bruneel amongst others notice that formal action is to be taken against them for alleged violations of anti-doping rules.  Here’s a link to the letter of intended action sent by USADA:


Posted in Cycling | No Comments »

February 6th, 2012

CAS Contador decision published

The Court of Arbitration for Sport today published its decision in the Alberto Contador case (  In summary, the panel concluded that:

a) Contador’s positive test for clenbuterol is more likely to have been caused by the ingestion of a contaminated food supplement than by a blood transfusion or the ingestion of contaminated meat;

b) no evidence had been adduced proving that Contador acted with no fault or negligence or no significant fault or negligence;

c) a two year period of ineligibility has been imposed on Contador running as of 25.01.2011.

Contador is therefore stripped of his last Tour and Giro titles, which now pass to Andy Schleck and Michele Scarponi respectively.  Contador’s ban will end in time for him to compete at this year’s Vuelta.  The CAS will in due course determine the appropriate fine to impose and also deal with the question of costs.

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January 19th, 2012

CAS decision in Contador case delayed again!

WADA’s appeal of the decision by the Spanish federation in Alberto Contador’s case was finally heard in November 2011.  The delays in these proceedings have been widely criticised and a decision was initially expected mid-January 2012.  The CAS decided to delay the publication of the decision in order that the parties may raise any challenge to the composition of the arbitral panel.  Neither side is understood to have challenged the constitution of the panel at the appeal hearing itself.  The CAS adopted this course in response to a recent report in the Associated Press that WADA lawyers accused the arbitral panel of not being impartial after they refused to hear testimony from their doping expert Michael Ashenden.  The wait continues ….



Posted in Cycling | No Comments »

January 19th, 2012

Neil Roland commission

Brodie & Company are pleased to have installed a number of pieces from acclaimed Manchester-based photographic artist, Neil Roland.

Neil has a legal background, having originally studied law.  Neil has retained a connection with the law and was commissioned to create a number of pieces for the opening of the Manchester Civil justice Centre.  Neil was also commissioned to create a number of pieces for the new Rolls Building in London and met Her Majesty the Queen at its opening.  The Rolls Building is the new home to the Chancery Division, the Admiralty and Commercial Court and the Technology and Construction Court and is reportedly the largest specialist centre for the resolution of financial, business and property litigation anywhere in the world.

See more of Neil’s works at

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January 19th, 2012

Interest on Costs

On 31.01.2012 the Court of Appeal will hear Simcoe v Jacuzzi UK Group plc, an appeal that will hopefully result in a judgment that ends the long-running debate over the date from which interest on legal costs runs.

Posted in Commercial, Costs | No Comments »

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