IN THE CENTRAL LONDON COUNTY COURT Claim No.

0UC84267

26-29 Park Crescent

London
W1B 1HT

Tuesday, 31st July 2012

Before:

HER HONOUR JUDGE MAY

Between:

KENNETH ELLIOTT & ROWE SOLICITORS

Claimants
-v-

MISS SADHANA CHAUDHARI

Defendant

______________________

Counsel for the Claimants: MISS CAMILLA TER HAAR

The Defendant appeared In Person, assisted by her sister, Mrs Neelu Berry

______________________

TRANSCRIPT OF PART-PROCEEDINGS
[Section of Mr McCormack’s Evidence]

Transcribed from the Official Tape Recording by

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 INDEX TO TRANSCRIPT

Page

MR SEAN McCORMACK - Continued

Cross-examined by MRS NEELU BERRY ..............................................................................1

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 MR SEAN McCORMACK – Continued
A Cross-examined by MRS BERRY

Q. I’m going back to the document of 21st January, page 3, paragraph 5, it has been
highlighted. ‘You do not have a no win, no fee agreement with this firm. You have
agreed to pay my firm’s fees at the standard rate of charge plus expenses.’ Can you
give a date and time—
B
THE JUDGE: Sorry, I need to catch up.

MRS BERRY: Sorry.

THE JUDGE: Which letter are we dealing with?

C
MRS BERRY: The letter that has been handed in today—

THE JUDGE: Oh, I see, yes, the first of the ones we saw today, yes, the one that I put at
28A.
A. No.
D MISS TER HAAR: At 28B. It is at 28B.

THE JUDGE: Is it? Oh, I see, all right, yes, yes.

MRS BERRY: Tab D.

E THE JUDGE: Page 3 of that, yes.

MRS BERRY: Paragraph 5, the highlighted part is, ‘You do not have a no win, no fee
agreement with this firm. You have agreed to pay my firm’s fees at the standard rate
of charge plus expenses.’ I would like to ask, what was the date of that agreement?
A. My letter of 4th August signed by Sadhana on 6th August 2009.
F
Q. You are referring to the client care letter?
A. I am.

Q. And can we go to the client care letter where it actually mentions… Could somebody
help me with the page number?
G
MISS TER HAAR: It is at tab D and it starts on page—

THE JUDGE: 1.

MISS TER HAAR: —1.

H
THE JUDGE: It is the first document behind the witness statement—

MRS BERRY: Thank you. I have found it.

THE JUDGE: —of Mr McCormack.

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A MRS BERRY: Thank you. And on page 3 of that document at point number 13 we have ‘a
conditional fee agreement, if applicable,’ and also on page 5, number 14, we have
‘Costs. Our charges will be…’ and the fourth paragraph, last line, it says, ‘On the
information currently available, on the assumption the case goes to trial and lasts for
one day, it is unlikely that the costs will be less than £15,000 per party.’
A. Yes, I see that.
B
Q. Can you justify the costs of £54,000 from what you wrote in that letter?
A. I do not think that is a question for today, is it? That is for the next hearing.

THE JUDGE: That will be—

C MRS BERRY: Right, sorry, okay. All right—

THE JUDGE: The sensible amount of the costs is still in issue and it is not something that I
am going to be addressing today.

MRS BERRY: Right, okay. Right, so the date that you’re relying on, you’re relying on the
signature on page 7 and it says, ‘I confirm that I have received and read this client care
D letter.’ So, can you please direct me to where you can confirm that what was in the
mind of Miss Chaudhari was that of those two options which one was applicable to
her?
A. I can’t tell you what was inside Miss Chaudhari’s mind at all, so no.

Q. I am going to refer you to a letter dated 28 th June, if somebody could help me with that
E one?

MISS TER HAAR: It is at page 40 and it starts at page 38 behind tab F.

MRS BERRY: This letter was sent to Miss Chaudhari and this is on 28 th June 2010. I am
going to page 3 of that letter, which is 40 of the bundle, of the tab, and the third
F paragraph that says, ‘Please understand that the fact that you have a no win, no fee
agreement does not prevent the defendants from coming at you for all of the costs.’
Can you explain what you mean by that paragraph?
A. I have to put my hands up, your honour, and I think I made a mistake in there. The
reference to having a conditional fee agreement at that point is just simply incorrect. It
is plain from the start of the action that I did not want to engage in a no win, no fee
G agreement and never did. If we go back right to the start, I did suggest that I would
review the matter when the evidence that I had indicated should be obtained was
obtained and then only if the evidence supported me entering into a no win, no fee
agreement. It is plain from the file and in fact from this letter and the letters sent on
this day, absent that paragraph, that the evidence had come together such that it told
me that Miss Chaudhari should be advised to accept the defendant’s offer that they had
H made to settle the road traffic claim, albeit late, and take the consequences of that
because their offer had overvalued her claim significantly and that was always a
possibility from the start. The full context of my letter of 28 th June 2010 is clearly
focused on the advice given to her to accept the offer and on value and I clearly took
my eye off the ball as to whether there was or was not a CFA in existence and I have to
apologise to you for that error.

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A Q. Well, further down in the same letter… I only have up to page 3 here, the letter is not
complete. Do you have the letter?
A. Yes, I do.

THE JUDGE: I do. Oh no, I do not. No, I have only got that bit.
A. I do not think it is in the bundle.
B
Q. How many pages did that letter go up to?
A. I think the complete picture is three letters on that day.

Q. No, but, sorry—

A. That letter has four pages.
C
Q. Has four pages? What does the fourth page look like?
A. It says, ‘I, therefore, suggest that you should not take the risk and bring this to a
conclusion immediately.’ That is the one marked ‘Extremely Urgent.’

MRS BERRY: Yes.

D THE JUDGE: What is the position at this stage, Mr McCormack about previous agreements
with previous solicitors?
A. There were conditional fee agreements with both previous sets of solicitors. Their
conditional fee agreements were in fact in my view defective in that they allowed for
105 per cent success fee—

E Q. Yes.
A. —which is not allowed.

Q. I saw reference to that, but, I mean, leaving that aside for the moment, what is the
impact of… I mean, presumably those previous solicitors are entitled to their fees—
A. Yes, they are.
F
Q. —if the offer is accepted or if the action is pursued—
A. Even if it is not accepted. If she is successful, if she meets the definition of ‘win’—

Q. Gets any money.

A. —then they are entitled to their full fees with a success fee.
G
Q. As I understand the chronology, the offer was put in at a time when Miss Chaudhari
was being represented by a previous firm of solicitors—
A. Correct.

Q. —under a CFA.
H A. Yes.

Q. Miss Chaudhari moved on from those solicitors two months after the offer had been
made. I do not know what the position was when the offer was made, but it was before
the last of the solicitors—
A. Yes.

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A Q. —finished.
A. Yes.

Q. If the action is pursued and an offer comes in at under the £35,000, what happens to
the fees of the solicitors after the offer? Who pays those?
A. That depends on the terms—
B
Q. The terms of the CFA.
A. —of the CFA and there are two standard versions, but everything can be changed in
any particular instance.

Q. But is there a possibility under a CFA that if you do not accept the offer and you get
C less that… I mean, who pays the defendant’s solicitors costs in that situation?
A. The claimant. The obligation to pay a defendant’s solicitors costs is always the
claimant’s.

Q. Personally?
A. The solicitors do not take those responsibilities on.
D Q. Under any CFA?
A. No. Defendant’s costs are always the primary responsibility of the claimant in that
action, so in this case Miss Chaudhari. There is a possibility of buying insurance—

Q. To cover any shortfall, yes.

A. —in those circumstances. Insurance was purchased by the first set of solicitors in this
E matter—

Q. But not by the second.

A —but upon transfer to the second set of solicitors that insurance lapsed. I do not think
the second set of solicitors realised that, but my enquiries led me to a conclusion from
communications with them that they—
F
Q. All right.
A. I asked them to transfer the benefit of it to this case.

Q. So, the point is that under the no win, no fee agreement with her second set of
solicitors there was an exposure to costs—
G A. Yes.

Q. —if the final amount did not beat the payment in or the offer that had been made?
A. Any costs order, yes.

Q. All right.
H A. Normally in the first place it would be satisfied from would be any winnings.

Q. But that vulnerability, that possibility was not what you were referring to in the third
paragraph of this letter?
A. My solicitor in this matter, Mr Emmanuel, did suggest in correspondence that that was
alluded to—

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A Q. I thought that might have been your views, yes.
A. —but I have looked at that and I think that is a strange interpretation there.

Q. Fine.
A. It may well have been something that I could have suggested, but I think the words
that I have used in there, in particular the present tense with ‘have’, I think I just made
B a mistake. As I say, your honour, the totality of my advice to Miss Chaudhari on that
day, which is quite crucial really, is contained in three separate letters of
28th June 2010, which I do have and, unfortunately, are not in the bundle.

MRS BERRY: Can I have a look at those?

A. Mrs Berry is asking for them. Shall I hand them over?
C
THE JUDGE: Yes. Are those ones that I have seen already?
A. No.

Q. So, this was one of the letters that were sent that day—
A. Yes.
D Q. —or are they—
A. That is the first one.

Q. Oh, I see; the first letter and there are two others?
A. There are, yes.

E Q. On the same date?

A. Yes. It became urgent because of a telephone conversation I had had with Dr Lloyd,
the psychiatrist instructed for the claimant.

MRS BERRY: I want to refer to one of these letters, the one that starts with, ‘Your accident
claim.’ It goes into all the amounts and—
F
THE JUDGE: What is the date of that letter, sorry, Mrs—
A. 28th June 2010.

MISS TER HAAR: This—

G THE JUDGE: I see. This is one of the ones that—

A. One of the three.

Q. One of the three, I see.

MISS TER HAAR: This third letter is in the bundle.

H
THE JUDGE: Oh right, all right. Where will we find that?

MISS TER HAAR: At tab G, page 8.

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 THE JUDGE: Thank you. Yes, sorry, Mrs Berry, I interrupted you. What did you want to
A ask about this letter?

MRS BERRY: Yes. Mr McCormack, this letter, I just want to understand what was in your
mind when you wrote this letter. You have written there that this offer was made of
the £35,000, a part 36 offer that was made with the previous solicitors. Then you go in
to this breakdown of really what is down to Miss Chaudhari. If she accepts that
B £35,000 she is liable to pay your costs on top of that offer. I want to ask you what was
it that you knew on that date that you did not know when you took the claim on, that
that offer was on the table and you took the claim on? What was the determining
factor in your mind what you were going to do for her to progress her claim?
A. Sorry, what was the question?

C THE JUDGE: Well, as I understood it, it was what did you know at the time you gave this
advice that you did not know at the time you first took her claim on.
A. Right, all right.

MRS BERRY: Yes.

A. Quite a lot.
D THE JUDGE: All right. Well, tell us about it.
A. I think reference perhaps should be made to my letter of 10th August. I indicated the
kind of evidence that we would need. There was a whole host of things listed,
including medical expert evidence on areas that I thought were needed. That evidence
had been obtained in that intervening year, or thereabouts. The evidence of all the
other experts confirmed, in essence, that Miss Chaudhari’s injury was a six month
E lasting whiplash type injury and nothing significantly more than that. Miss Chaudhari
at that point (and this is what I had anticipated at the start might be the case) then
became wholly reliant on the psychiatric evidence to hold together the claim that she
wanted to make and wanted to win.

Q. You mean a claim for more than £35,000?

F A. Oh yes, so at one point a figure of £100,000 was discussed because the previous
solicitors or her barrister had indicated that the claim might be worth more than
£100,000, which it could have been had the evidence come out favourably, but the
client had in a mind a figure even higher than that. So, when I—

Q. So, once all the medical had come in—

G A. Yes.

Q. —it was then going to be a question of the psychiatric evidence?

A. It was absolutely crucial. If the psychiatric evidence did not support her case that she
had a somatoform disorder or other psychiatric cause from the accident, not from any
pre-existing problem, then if that evidence came forward showing she had a problem
H down to the accident then her claim was larger. If it did not support anything more
than the physical evidence of six months then she had a six month claim. And if I can
just find my first letter, which I think is still there—

Q. By the time of writing the third letter had you had that psychiatric evidence?

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 A. Can I have that back please, the urgent first letter? Right, I start with the first letter,
A your honour, 28th June 2010, indicating what I thought was going to come from the
medical evidence of Dr Lloyd and then anticipating what the joint statement would
say.

Q. Mr Lloyd was the psychiatrist?

A. Dr Lloyd, sorry—
B
Q. Dr Lloyd.
A. —is our psychiatrist and then at the start of page 2 I was in fact interrupted by a
telephone call from Dr Lloyd telling me that he had seen Sadhana for the purposes of
the updating report and his opinion would be that she had an inability to work through
psychiatric injuries for six months and that after that her symptoms were caused by a
C pathological grief reaction in relation to the unfortunate death of her child, [Shilana?],
some seven years previously.

Q. So, psychiatric injury attributable to the accident was—

A. Six months.

Q. —restricted to six months in the same way as the whiplash?

D A. Correct, yes.

Q. Yes, so, yes.

A. And at that point you can see my advice becomes very, very firm that £35,000 as a
value could not be beaten in realistic terms. I said somewhere, I think, in this letter,
‘Rarely have I given such strong advice…’
E
Q. Yes, I saw that, yes.
A. But this was one of those cases where it was appropriate.

Q. All right. Well, I think I have got a pretty long note of what he thought had changed
between the time of first meeting with your sister and sending this letter.
F
MRS BERRY: There’re a few questions that has come out of just what Mr McCormack has
said and that is the issue of this MRI. Judge Hornby had ordered this MRI to be sent to
some experts and I would like some help with the page number.

THE JUDGE: Well, I would like you first to tell me how this impacts on whether it was a
G CFA or not—

MRS BERRY: Right.

THE JUDGE: —on the issue that we are dealing with today—

H MRS BERRY: Yes.

THE JUDGE: —rather than—

MRS BERRY: Right.

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 THE JUDGE: —issues of competence generally.
A
MRS BERRY: Sure, but these—

THE JUDGE: I allowed you to investigate what had changed between the two letters
because it is obvious that the letters themselves refer to the CFA and—

B MRS BERRY: Yes.

THE JUDGE: —so I let you have some leeway on that—

MRS BERRY: Thank you.

C THE JUDGE: —but I do need us to keep focused—

MRS BERRY: Yes.

THE JUDGE: —on the issue and—

MRS BERRY: Okay.

D
THE JUDGE: —I am wondering how the MRI scan stuff… I know your sister has—

MRS BERRY: Yes.

THE JUDGE: —complaints in relation to it—

E
MRS BERRY: Okay.

THE JUDGE: —but I am wondering how that impacts on the nature of the agreement
between the solicitors and your—

F MRS BERRY: Okay. Well, your honour, as you’ve heard, what was in Mr McCormack’s
mind changed—

THE JUDGE: In law I am not very interested in what is going on in people’s minds. I look
at what the documents show. That is a matter of law.

G MRS BERRY: Okay.

THE JUDGE: So, what is in people’s minds—

MRS BERRY: Okay.

H THE JUDGE: —can only be of limited use, I am afraid.

MRS BERRY: Okay. Well, Mr McCormack has not shown us any evidence that there was
any kind of definite agreement as to the terms of any agreement.

THE JUDGE: All right.

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A MRS BERRY: And we’re having to rely on what was in his mind because he hasn’t
produced any evidence.

THE JUDGE: Well, I think what he would say is that it is the client care letter. Now, there
may be all sorts of arguments about the meaning of that letter, but he says that there
was a contract evidenced by that letter and by the many meetings and by the fact that
B he went off and instructed doctors on behalf of your sister to see her and to provide
opinions on aspects of the underlying case.

MRS BERRY: And what we’re saying is that basically the firm messed up her claim
deliberately—

C THE JUDGE: Well, I understand that.

MRS BERRY: —in order to inflate their fees and basically tell her to go and sell her home
and pay for the defendants—

THE JUDGE: I understand all of that, but, again, I think we need to keep focused on what
was the nature of the arrangement. I will not even call it an agreement, I will use an
D even more neutral word. What the nature of the agreement underlying the work that
Kenneth Elliott & Rowe did on your sister’s case was.

MRS BERRY: I know that we’ve had a similar action against my mother by this firm and
they have put a charge on my mother’s property. Now, she is a very similar—

E THE JUDGE: I am afraid that I cannot deal with that today.

MRS BERRY: What I saying is that the issue here is that what the firm is doing routinely is
misleading people as to the terms of the understanding of any agreement.

THE JUDGE: I am going to let you make all these submissions at the end of the case. Shall
F we just finish Mr McCormack’s evidence—

MRS BERRY: Right, okay.

THE JUDGE: —if there is anything else you want to ask him—

G MRS BERRY: Yes.

THE JUDGE: —that is to do with the nature of the agreement.

MRS BERRY: It’s to do with the messing up of the claim.

H THE JUDGE: Not interested in that today.

MRS BERRY: Right. Well, okay, Mr McCormack, can I just ask you, you have gone with
the psychiatrist here. You have just said that you are going to rely on the psychiatrist
because the psychiatrist said this, but if you remember Judge Hornby’s order, he had

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 ordered in a sequence that there was going to be… and at that time as you recall the
A lower back injury had not been identified—

MISS TER HAAR: Your honour—

THE JUDGE: This is not to do with the CFA or the agreement point…

B [End of requested transcription]

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