Appeal judges “penalising law firms for being efficient”

Underwood: No logical difference between Bott’s scheme and portal

The Court of Appeal ruling last week in the Bott & Co flight delay litigation shows that judges are not giving solicitors credit for being more business-like and efficient, a leading commentator has argued.

Kerry Underwood, senior partner of Underwoods Solicitors and a well-known lecturer and author, said the senior judiciary needed “to think through rather more carefully the whole issue of access to justice and litigation, and how it may be delivered”.

He spoke out following the appeal court ruling in Bott & Co Solicitors v Ryanair, which concerned the airline dealing directly with the law firm’s clients, including paying them compensation.

The court said the firm was not conducting litigation when the claims were not contested, and so did not have an equitable lien over the compensation. The court said 30% of clients did not pass on the fees due to Bott.

Writing on his blog, Mr Underwood said: “At one level, lawyers are being encouraged to use portals and follow protocols and do everything to avoid litigation, and yet Bott & Co appears to be being punished for using such a scheme, and for making significant profits from it.”

He questioned the relevance to the legal principles of the fact that Bott’s income from claims against Ryanair was over £100,000 a month, or the number of claims it was handling, “except to show the success of the scheme and the attraction to members of the public”.

Mr Underwood continued: “So, at one level, we are consistently urged to be efficient and be a business, with the provision of legal services opened up to every Tom Dick and Harry, but when a firm does exactly that, they are punished by the courts by being refused a lien.

“I can see no logical difference between the pre-action road traffic portal, where 99% of cases are settled, and the scheme operated by Bott & Co. This decision should be overturned by the Supreme Court.”

Senior partner David Bott made a similar argument in the wake of the ruling. He said he had hoped the court would recognise “the way the law was going” in terms of firms becoming more efficient using technology to process matters and said it had taken a lot of investment for claims to be handled in what the court described as a “mechanical and formulaic” way.

“If I’d had 100 10-year-qualified solicitors with pens and paper instead, it would not have been a problem,” he observed.

Mr Bott added that, with 54% of its flight delay claims now being litigated, “this may well be low value [work], but it is not necessarily low complexity or low in argument”.

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