Tenant signing retainer instructing solicitors in relation to statutory nuisance – Council carrying out repairs after information preferred but before date of hearing – Tenant claiming costs under section 82(12) of the Environmental Protection Act 1990 – Whether tenant entitled to costs – Whether retainer contingency fee arrangement and unenforceable by virtue of r 8 of the Solicitors’ Practice Rules 1990 – Tenant not entitled to seek costs
The appellant was a tenant of 174 Bewholme Grove, Hull, which was owned by the respondent council. The property suffered from dampness, and the tenant signed a retainer prepared by a firm of solicitors instructing them to act for him in the matter. On July 7 1997 an information was preferred against the council, claiming that the premises constituted a statutory nuisance as defined by section 79(1)(a) of the Environmental Protection Act 1990. Thereafter, the council carried out the necessary works and on December 15 1997 the complaint was withdrawn. Accordingly, the only remaining issue was whether the appellant was entitled to his costs under section 82(12) of the 1990 Act, whereby a defendant was liable for a plaintiff’s costs if a statutory nuisance had existed at the date of the information but not at the date of the hearing.
At the hearing before the magistrate, the council, relying on British Waterways Board v Norman (1993) 26 HLR 232, argued that any claim for costs under section 82(12) of the Act was prohibited because the retainer provided for a conditional fee, was contrary to public policy and was therefore unenforceable. The magistrate concluded that the solicitors’ retainer had not contemplated that costs would be payable by the appellant if his complaint failed. Therefore, the solicitors had sought to conduct the matter on a contingency basis, which was contrary to public policy since it was a criminal trial, and, accordingly the appellant was unable to seek his costs under section 82(12). The appellant appealed by way of case stated relying on a subsequent decision of the Court of Appeal in Thai Trading Co v Taylor [1998] 2 WLR 893, which showed a clear change in the public policy implications of similar contingency type agreements.
Held The appeal was dismissed.
1. The rules made under the auspices of section 37 of the Solicitors’ Act 1974 had the force of subordinate legislation. Accordingly, r 8 of the Solicitors’ Practice Rules 1990, made under section 31 of the 1974 Act, also had the status of subordinate legislation and, therefore, contingency fees for contentious proceedings were unlawful: Swain v The Law Society [1983] AC 598 followed.
2. The magistrate had found that the retainer had not contemplated that costs would be payable by the appellant if his complaint failed, which meant that the retainer was a contingency fee arrangement. That arrangement was contrary to statutory provision by r 8 of the 1990 Rules. Therefore, the retainer was unenforceable and the appellant could not seek his costs under section 82(12) of the 1990 Act: Thai Trading Co v Taylor [1998] 2 WLR 893 not followed.
Valerie Easty (instructed by Sydney Mitchell, of Brimingham) appeared for the appellant; James Findlay (instructed by the solicitor to Kingston upon Hull City Council) appeared for the respondents.
Thomas Elliott, barrister
