The past is never dead. It’s not even past.

Gavin Edmondson Solicitors v Haven Insurance Company

[2015] EWCA Civ 1230

Once upon a time, Toad’s motorcar shunted Mole’s car.  Mole suffered whiplash to his tail and he went to see a solicitor to see what it was worth.  (Actually, what is more likely, Moley went home, took a few neurofen and went to bed early.  It was only when he was subsequently hounded and haunted by claims farmers that he was persuaded to go and see a solicitor, in the hope everyone would leave him alone).

Minor personal injury – PI – claims are now run through a clever website set up by insurance companies.  It is buttressed by a special protocol for traffic accidents.  You don’t have to use it, but if you don’t, then as a lawyer you might be clobbered when it comes to costs.  It essentially makes communications between the parties easier.

Mole’s solicitor, Badger, fills in a special 17 page form and lodges it on the portal.  It details Mole’s hurty tail and crumpled whiskers.  (Didn’t I mention the crumpled whiskers?  Badger had to point them out to the Mole).  

This is stage 1 of the process, and Badger gets £400.  There are three stages, and solicitors get fixed fees for each of them, plus a success fee plus expenses. Mole doesn’t have to pay anything because this is a no win, no fee deal.  It’s not easy to get legal aid now, and certainly not for a crimped tail and ruffled whiskers.  

Mole is then rung up by the Weasels.  They are the insurance company who insure Toad.  They offer Mole a couple of thousand for his trouble, and Mole accepts their kind suggestion.  He then tells Badger he doesn’t need his help anymore, but thanks anyway.  

So everyone is happy, except for poor old Badger.  Who is going to pay his fees now the insurer and his client have done a deal?  Surely, though, Badger in his carefully drawn retainer (contract) with the Mole must have provided for sneaky-beaky behaviour by punters?  Badger????

Ooops!!!  (weeping emoji).

This is the sad story of Gavin Edmondson “specialist and diverse legal services from a dynamic and progressive firm” based in Cheshire.  What should they do next?  Especially as the Weasels have pulled this stunt on other clients as well.

Well, one of the economic torts instantly comes to mind – those chapters at the back of your Introduction to Tort book from law school that you never looked at.  This would say: you nasty Weasels interfered with my contract unlawfully and I suffered loss.  Sound plausible?  That was pleaded too, but then this dynamic and progressive firm out with a real bad boy of a claim: an attorney’s lien (pronunciation as in David).  

Not heard of that?   This is a magic wand fashioned in that special, mysterious smithy known of yore as the Court of Equity.  Lawyers will know the various mystic phrases: Equity is a patch on the cloak of the common law; equity comes to fulfill the common law, not destroy it.  

Or put another way, Equity throws a loving, protectionist arm around poor Badger and tells the Weasels to pay all of Badger’s costs, expenses and success fees.  Welsh judge, HHJ Milwyn Jarman had been less impressed with Equity’s charms at first instance, but Lloyd Jones LJ completely succumbed to her blandishments.  

There is, he reckoned, something so special about a solicitor, that he should be kept safe from loss by whatever means.  Or to quote Lord Kenyon in Read v Dupper 1795:

“The party should not run away with the fruits of the cause without satisfying the legal demands of his attorney, by whose industry, and in many instances at whose expense were gained.”

We can all agree with that.  If you make a contract, you should keep it.  If you eat a meal in a restaurant, you shouldn’t run away without paying. But bad things happen, and any transaction carries with it a risk of default.  What the solicitor’s lien does is impose an additional liability on the third party former defendant, to pay the bill in default.  Or as Lord Mansfield said in Welsh v Hole 1779:  

An attorney has a lien on the money recovered by his client, for his bill of costs; if the money come to his hands, he may retain to the amount of his bill. He may stop it in transitu if he can lay hold of it. If he apply to the Court, they will prevent its being paid over till his demand is satisfied. I am inclined to go still farther, and to hold that, if the attorney give notice to the defendant not to pay till his bill should be discharged, a payment by the defendant after such notice would be in his own wrong, and like paying a debt which has been assigned, after notice.  

Actually, here the solicitor didn’t succeed, but throughout the nineteenth century, there were lots of attempts, some of them successful made on the basis of the lien and attracted the “equitable intervention of the court”.

On one level, this makes sense.  The Westdeutsche Landesbank case says that equity fixes on the conscience of a defendant.  If the plaintiff and the defendant are colluding to avoid paying the solicitor’s fees, then one can see that Equity might have a thing or two to say about it.  However litigants are free to settle litigation without involving their lawyers, and the idea of the would be defendant being essentially a guarantor for the solicitor’s fees is a bizarre one.  

The solicitor’s lien found a twenty first starring role in Khans Solicitors v Chifuntwe two years ago.  I do wonder what clever person turned up this case.  The concept lay dormant in the twentieth century apart from a single outing in front of Scarman J.  

Chifuntwe,  a decision of Sir Stephen Sedley, with Ryder and Rix LLJ as makeweights, I found genuinely jaw-dropping.  That “you’ve gotta be havin’ a laugh” feeling takes hold and your normative earning a meagre crust lawyer self puts on its hat and coat and takes a turn around the block whilst the critical legal devil rages itself into a puff of smoke.  

Gavin Edmondson reprises Chifuntwe.  Unlike Chifuntwe however, the insurance company’s behaviour was sharp and a rap on the knuckles was called for.  Quite why though, a court in 2015 would resurrect a rule accepted as established in 1795, and dormant since 1897 (pace Fuld ) to administer the correction, is puzzling.  

Nor is the rule based on solid or consistent legal argument.  It’s clearly not a lien because the fruits of the litigation are not in the solicitor’s actual possession.  If that were the case, there would be nothing remarkable about the doctrine.  However this soi-disant lien is some kind of extra-statutory charge which is either based on collusion – mala fides – or on the doctrine of notice.  Quite frankly Lord Mansfield’s analogy with an equitable assignment is queer.  I note he handed down the judgment on a Saturday morning.  Perhaps after an excessively sociable evening the night before.

The Weasels are seeking leave to appeal to the Supreme Court, and I hope the justices fancy a nibble.  Don’t get me wrong; I don’t hold a brief for a barbary ape dwelling insurance giant.  However digging up this non-contextualised fossil with all the insouciance of a early morning dog digging up a human skull at the beginning of a Scandi boxed set does nobody any good at all.  

On Street Names: Basildon Borough Council v James

This must be one of Garnham J’s first judgments as he was only elevated at the end of October. Quondam Neil Garnham QC of 1COR  (1 Crown Office Row, home of the Human Rights Blog) , his old chambers page has an impressive list of  his heavyweight briefs:  for the troops in the Baha Mousa and Al-Sweady inquiries;  the Security Service in the 7/7 inquest; the Met at the Leveson inquiry; HMG in the Litvinenko inquest.   

With form like that, you don’t need designers to puff you.    His photo is smiley, small and of poor quality.  It immediately invites reassurance. The page is refreshingly clear of vulgar brag tags from legal directories.  I’m guessing he’s good, even if he went to a private school and Oxbridge.  

So rather a come down to be assigned to this little case on street names on an estate in Basildon.  Real name:  Five Links; non-affectionate local moniker: Alcatraz.  Alcatraz was built in the 1960s, when architects and planners were having a notoriously bad hair decade.  The makeover of the estate has been chugging on since the late nineties.  Some of the estate has been demolished, more housing stock has been added.  

I’m guessing the new reconfiguration is why this squall-ette blew up.  The old street names got a bit unwieldy, and the Council decided to mark the beautification process with a twenty first century baptism.  Not that the old ones are bad:  Brendon, Handley Green, Laindon Link, Mellow Purgess, Newberry Side and Somercotes.  A little flares and Angel Delight perhaps, but perfectly commodious.

Street names are fascinating.  Some are descriptive:  Church Lane;  The Shambles;  Buckingham Palace Road.  Planned streets lack this raison d’etre.  Theyare lumbered with weird titles.   “Molly Huggins Close” is a personal favourite.  Victorian developers were no better.  Take Ulundi Road in Blackheath.  Why would you name a street after a colonial massacre?

Mr Gasztowic QC appeared for the Council.  His chambers page has a high def. picture of himself looking enigmatic.  The CV does not condescend to particulars, but is meant to sound grand.    Still it’s a better picture than the Residents’ brief, Ms Moonan.  She has a dark and rather sinister avatar outline.  Perhaps as a criminal defence barrister she is wary of being briefed for Carter-Silk purposes.   There’s not much about her street signage practice either, but good for a girl to have a hobby.

The case came to Garnham J by way of case stated from DJ Branston.  He wrote a stonking 112 paragraph judgment about why the Council was wrong.  

Just in case you don’t know  the provision for naming streets is set out in the section 18 of the Public Health Act 1925.  This harks back to an age when housebuilding was seen as a preserve of public health rather than as a branch of wealth acquisition.

Under section 18, the Council can call a street what it likes.  This is less of a problem when the streets are brand new.  However, here in the Five Links estate, people had been living in these streets all their lives, and didn’t want to wake up in the morning with a whole new address to spell out to call centres.

Any person aggrieved by the proposed nomenclature may appeal to “the petty sessions” under section 8. Appeal from there is to a DJ, and thence to the QBD.

The thing that makes this case interesting is that there’s no case law on the statute even though it’s nearly a hundred years old.  So a blank sheet of paper, and who writes the rules? The answer to that of course is the most senior person in whose lap the question falls.

I liked DJ Branston’s approach, although whether he came up with it himself or adopted it from the nameless advocates below, I know not.  Wednesbury unreasonableness was not deemed suitable, so the judge adopted the analogy of the appeal from a licensing application.  Which was creative.  Based on this foundation, the learned DJ set out seven criteria to which the Council should have had regard:  logic; clarity; utility; attractiveness; public safety, history and the wishes and feelings of the residents.  Pace Oliver Wendell Holmes, a very fine list it is too.  It points to the learned DJ being a practical and tidy-minded DJ.  Aesthetics is well down the list, as is what the natives think.  

The new street names were found wanting, and the losing Council appealed by way of case stated to the Big Court.  Query:  why didn’t they act all consensus and cuddly and  get the residents to vote?  Slightly stalinist to rename stuff in line with the new regime?  

One of the things that makes administrative law frustrating is that big picture questions and creative solutions do not often win out. And so it was here.  Garnham J expressed his disagreement with both sides’ submissions and said the question had been framed wrongly.  The statute and the appeal by aggrieved persons did not allow the adjudicator to set their own parameters.  Instead, the judicial exercise was restricted to saying whether the council had exercised the power wrongly or not.  It was on the aggrieved persons to prove this, rather than, as Branston DJ had done to put the burden on the Council to justify its rebranding decision.  

But the battle isn’t over yet.  The question has been remitted back down to the DJ now that he’s been told what to do.  So the lesson is that even if there’s no precedent for something, don’t think you can mark out your own boundaries.  Not unless you’re top dog that is, and then you can practice street furniture marking as you please, provided it sounds convincing.  Will the residents be able to afford to appeal the judgment, and also as this is virgin territory, perhaps the JSCs might fancy a go?

The war of Alcatraz is not yet over.