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No. HC-2017-000219
Neutral Citation Number: [2018] EWHC 2692 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Rolls Building
Fetter Lane
London EC4A 1 NL
Thursday, 12 April 2018

MR JUSTICE FANCOURT

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B E T W E E N :

(1)	COLIN FRANK ANDREWS
(2)	IRENE ANDREWS
(and all those individuals listed in Schedule C
annexed to the Particulars of Claim)                             Claimants                                                                                                                                                       

-  and  -

MESSER BEG LIMITED
(Formerly known as RWP SOLICITORS LIMITED)
Defendant

A N D   B E T W E E N :

MESSER BEG LIMITED
(Formerly known as RWP SOLICITORS LIMITED)       Part 20 Claimant

-  and  -

	DAVID LOWE QC     	Part 20 Defendant
	
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A P P E A R A N C E S

THE CLAIMANTS were not present and were not represented.

MR F. BACON appeared on behalf of the Defendant/Part 20 Claimant.

MR R. STEWART QC appeared on behalf of the Part 20 Defendant.

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Transcribed by Opus 2 International Ltd.
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This transcript has been approved by the Judge

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J U D G M E N T
E X – T E M P O R E 

This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.

MR JUSTICE FANCOURT:

1.	This is my judgment on an application issued on 8 February this year by the Part 20 defendant, Mr David Lowe QC, to strike out the Part 20 amended particulars of claim or, alternatively, for summary judgment under Part 24.2 against the Part 20 claimant on that claim.

2.	The main proceedings are claims by numerous claimants for damages against the defendant, who are a firm of solicitors formerly known as RWP Solicitors (I will refer to them as “RWP”) for losses caused by the failure of previous proceedings brought by way of group litigation against subsidiaries of Barclays Bank and the Bank of Scotland.   These underlying proceedings for relief under the Unfair Terms in Consumer Contract Regulations and the Consumer Credit Act were effectively abandoned by the claimants in 2010, when they had to give up their claims owing to lack of funding with which to progress them.

3.	The claimants’ claim against the defendants in these proceedings is based on an allegation that RWP should have advised the claimants to fund their claim against the banks on the basis of a conditional fee agreement (“CFA”) with the benefit of after the event adverse costs insurance (“ATE”) and, if necessary, some third party funding for disbursements, instead of on the basis of each claimant contributing £5,000 to a fighting fund which was the strategy that RWP encouraged the claimants to adopt.  Alternatively, it is alleged that RWP should have advised that the fighting fund strategy was doomed to fail.

4.	RWP deny liability to the claimants on the basis that non-negligent advice about funding the underlying proceedings was given and that it would not have been possible in the market in 2008/2009 for the underlying claim to have been financed by a CFA and ATE.  RWP themselves would not have acted on a CFA basis.  

5.	There is an additional subsidiary allegation that RWP failed to exercise appropriate control over the funds spent on counsel’s fees, and that they encouraged expenditure by counsel at the rate of £100,000 per month.  That allegation is denied by RWP.

6.	RWP issued a Part 20 claim against Mr Lowe for an indemnity or for contribution towards any damages or costs awarded in the event that the claimants’ claim against them succeeded, contrary to their defence.  The Part 20 claim is essentially advanced on the basis that Mr Lowe was engaged as from May 2008 to advise members of two action groups on the validity of a claim by all those who took out shared appreciation mortgages (“SAMs”) in the 1990s and that, thereafter, he was involved with RWP, advising and acting, throughout the litigation.  RWP say that if they are liable for having failed to advise on a better funding scheme that could have successfully been used by the claimants, or that the fighting fund scheme was doomed, Mr Lowe must also have been in breach of the duty that he owed to the claimants.

7.	In almost all respects, the Part 20 claim as pleaded is a reflective or parallel claim to the claim brought against RWP.  Indeed, the Part 20 amended particulars of claim refer to it in one place as a “mirror claim”.  

8.	So far as the excessive expenditure on counsel’s fees is concerned, the Part 20 claim could not simply mirror the complaint levelled at RWP, but there is a particular allegation by RWP against Mr Lowe that he failed to delegate sufficiently to a junior.  Mr Lowe’s case is that the allegations pleaded against him cannot succeed as pleaded on the basis that (a) it is common ground that Mr Lowe was not instructed formally to advice on costs or funding and (b) that funding was a matter for RWP as solicitors, not for Mr Lowe as a barrister, unless he was specifically asked to advise on such matters.  

9.	Mr Lowe also contends that, as a matter of fact, he only assisted in implementing a strategy for funding that RWP had already set.  There is also a factual case advanced by Mr Lowe that there was, at the time, no real chance of CFA, ATE or third-party funding being available to the claimants in the underlying action and, alternatively, that there is no arguable case that Mr Lowe should have known and advised that such funding could have been obtained.

10.	RWP’s case is based heavily on the fact that Mr Lowe was closely involved in advising on the underlying claim and, as they say, in assisting to decide on and in implementing the funding strategy.  The claimants allege that, of the £1.3m raised by claimants and spent on the underlying litigation, about £800,000 was expended on Mr Lowe’s and his junior’s fees.  That gives some indication of the extent of Mr Lowe’s involvement.

11.	If there is a valid complaint by the claimants that RWP failed to advise on an appropriate strategy, RWP say, putting matters simply, Mr Lowe must accept his share of the responsibility for that.  

12.	With that introduction, it is necessary to consider carefully the pleaded allegations and defences because Mr Lowe contends that the case as pleaded against him cannot succeed.  The particulars of claim in the main action by the claimants set out (at para.36) the principal allegation on the duty that was owed and (at para.38) enumerates the various respects in which it is alleged that RWP were under a duty to do something different from what they did.  I will not read out those paragraphs now in detail, but I incorporate them, by reference, into my judgment:

13.	Paragraph 36:

“Further, any reasonably competent litigation solicitors with experience of conducting litigation of the kind proposed should, in 2008, have known that it was possible to structure litigation funding in a way that gave such claimants an enormous tactical advantage.  The structure of such litigation funding involved (1) the provision of legal services by way of conditional fee agreements (“CFAs”) in respect of which an uplift of up to 100 per cent on base fees could be charged in the event of the claim succeeding; (2) the recoverability of those base and uplifted fees from an unsuccessful defendant; (3) the taking out of after-the-event insurance (“ATE Insurance”) which provided cover against any costs liability to a successful defendant; (4) the availability of self-insured ATE Insurance which meant that the premium would only be payable in the event of a successful claim; and (5) the recoverability of the premium in respect of ATE Insurance from an unsuccessful defendant.  Such a funding structure (1) was extremely favourable to claimants since it enabled them to litigate at almost no personal risk; and (2) exerted very considerable pressure on defendants (particularly those with deep pockets such as banks or insurers) to settle claims rather than take them to trial, since, if the claim succeeded, they faced paying the normal base fees, uplifted fees and ATE Insurance premium.”

14.	Paragraph 38:

“In the circumstances, the Defendant was also under a contractual and common law duty:-

38.1 	to take all reasonable steps to investigate such alternative funding arrangements at the outset (in other words after 11 August 2008 and by no later than early 2009);

38.2	to advise the Claimants of the possibility of and potential availability of such alternative funding arrangements;

38.3 	to advise the Claimants, if such alternative funding arrangements could not be offered by the Defendant, that it was in their interests to consider whether other lawyers could offer such alternative funding arrangements;

38.4	to advise the Claimants that it was most unwise to commence legal proceedings without having such alternative funding arrangements in place, given that in the absence of such arrangements there was an obvious and very substantial risk (at the outset and by no later than February 2009) of a funding shortfall and the prospect of having to discontinue;

38.5	having (in the premises, negligently) allowed the Claimants to litigate without such alternative funding arrangements in place, to monitor closely the costs being incurred and to limit expenditure on disbursements.”

15.	At para.44 of the particulars of claim, particulars of alleged breached by RWP of their duty to the claimants are set out.  Again, similarly, I incorporate those particulars into my judgment.

16.	Paragraph 44:

“The Defendant was in breach of its contractual and common law duties to the Claimants.

Particulars

(1) 	The Defendant failed to give any sufficient consideration to, or advise on, the funding of the proposed litigation and the obtaining of insurance in relation to potential liabilities for the opposing parties’ costs.

(2)	The Defendant failed to recognise, or advise on, the fact that the funding arrangement which was used was very likely to lead to expensive failure for the reasons set out in paragraph 43 above.

(3)	The Defendant failed to recognise, or advise on, the enormous advantages which would flow from the adoption of a CFA/ATE funding regime of the type described in paragraph 36 above, and, in particular, on the fact that such an arrangement would enable its clients to litigate against the Lenders at minimal personal risk in circumstances in which the Lenders would be exposed to liabilities for uplifts and ATE premiums on top of the normal costs liabilities if unsuccessful in their defences.

(4)	The Defendant failed to monitor and limit the actual expenditure on disbursements, in particular counsel’s fees, but, on the contrary, encouraged counsel to charge £100,000 per month for their work on the early stages of the litigation.

(5)	If the Defendants and/or instructed counsel were unable or unwilling to contemplate accepting instructions on the basis of a CFA or partial CFA, then the Defendant should have advised its clients to seek advice from lawyers who were prepared to contemplate such instructions, but failed to do so.

(6)	The Defendant failed to take any or any sufficient steps to investigate the terms on which a CFA/ATE funding arrangement might be available.

(7)	The Defendant failed to give any or any sufficient advice on its clients’ possible exposure to adverse costs orders, and as to the steps which might be taken to obtain insurance in relation to such exposure.

(8)	The Defendant accepted instructions to act in substantial multi-claimant litigation when its ignorance of the funding arrangements which were then available to claimants made it unable to carry out its instructions competently.”

17.	At para.49, the claimants set out their primary case and their alternative case on what would have happened had the defendant acted with reasonable skill and care, namely that a CFA/ ATE funding agreement would have been entered into and the claims would have proceeded, the alternative case being that the claimants have been deprived of a substantial chance of the opportunity to pursue that litigation. 

18.	No claim is made by the claimants directly against Mr Lowe, although he is named in various places in the particulars of claim.

19.	RWP’s defence to that claim is essentially that, for various reasons, this was not the sort of claim that could have been funded by CFA and ATE, that, in the circumstances, they were not negligent in failing to advise on such funding; that the claimants would not have succeeded in obtaining legal representation on that basis, and that the funding arrangement in place, which was fully endorsed by Mr Lowe, was a reasonable and proper way to proceed.  

20.	The claimants’ reply and further information following a request for further information pleads that four identified ATE insurers were in the market to provide cover for GLO claims of this kind in 2008 and 2009.

21.	Following a request for further information in relation to the Part 20 particulars of claim, RWP voluntarily served amended particulars of claim.  It is on the basis of that statement of case that this application proceeded.  The amended particulars of claim plead, in the usual way, a summary of the facts of the claim brought against RWP, including Mr Lowe’s opinion on 8 August 2008, which did not address funding, and his involvement in drafting a press release for the proposed group litigation on 20 August.  The particular duties owed by Mr Lowe are then alleged and pleaded in paras.8 to 15 of the amended particulars of claim.  Paragraphs 9 and 10 are of particular importance and read as follows:

“In about May 2008, Mr Lowe was instructed by RWP to advise SAFE and SAMAG in accordance with his written instructions dated 7 May 2008.  Mr Lowe subsequently accepted instructions to act for the prospective Claimants (as and when they provided or secured, in full or in part, their contribution to the fighting fund) in the prospective and actual proceedings brought against the Lenders.  

“By accepting his instructions and agreeing to act for the Claimants, Mr Lowe accepted a duty at common law to exercise the reasonable care and skill to be expected of a reasonably competent senior barrister with experience of acting on behalf of a very large number of claimants in complex litigation of the kind proposed in the High Court.”

22.	What is clearly pleaded there is that Mr Lowe was first instructed to advise two action groups and then, as and when each claimant paid his £5,000, or part of it, or gave security for it, Mr Lowe was separately instructed to act for each claimant in the underlying proceedings.  So, it is not pleaded that Mr Lowe advised or acted for individual claimants before they had paid to fund their involvement in the litigation.  That, Mr Lowe says, demonstrates that the argument that he should had advised on a different scheme of funding is unsustainable.

23.	Paragraphs 12, 13, 14 and 15 of the amended particulars of claim then effectively plead that if, contrary to RWP’s defence, RWP was bound to advise the claimants about alternative funding of the kind suggested, Mr Lowe should have known of such funding opportunity too and he should also have addressed that issue and advised the claimants accordingly.  What is alleged is a mirror of the claim brought against RWP, without differentiating between the roles and responsibilities of a retained litigation solicitor and a barrister instructed by the solicitor.  

24.	The amended particulars of claim then plead Mr Lowe’s close involvement in the strategic decisions in the litigation and his drafting of most of the relevant documents used by RWP in connection with promoting the claim and acting for the claimants.

25.	The main facts on which RWP rely, only some of which are pleaded, are set out in paras.13 to 24 of the witness statement of Mr John William Bradley dated 28 March 2018, made in response to this application.  Mr Bradley is a solicitor from a different firm acting for RWP in this litigation, so he does not have personal knowledge of what happened between RWP and Mr Lowe and the claimants, he is simply rehearsing either what the documents show or what is pleaded by RWP.

26.	His witness statement suggests that Mr Lowe gave Ms Messer of RWP considerable advice about how best to promote the scheme that had been devised, namely to seek to attract 1,500 claimants who would each advance £5,000 towards legal fees.  The documents subsequently obtained on behalf of Mr Lowe do not support the allegations made about May, June and July 2008.  

27.	What is then said is that Mr Lowe drafted various documents, a press release intended to encourage potential claimants to join up which says nothing about funding as such, and a summary of his long, written opinion which was used to attract potential claimants, but that too says nothing about funding.  It is then said he suggested to RWP, on 8 September, that there should be a discussion of issues about funding at a consultation.  This took place on 12 September, but an email from Ms Messer of RWP to the action group committee dated 11 September demonstrates that the funding strategy had already been decided by then.  That email refers to the aim of attracting 1,500 litigants, paying £5,000 each.

28.	Following the consultation, a newsletter questionnaire was drafted by Mr Lowe’s junior and approved by him, asking whether possible claimants were willing to pay £5,000.  There was then provision of a questions and answers script on 25 September, the amendment of sections of RWP’s terms and conditions relating to funding and costs on about the same day and advice to Ms Messer on the same day about what she could say in a Moneybox interview when asked why her firm was not funding the proceedings on a CFA basis.  That advice, it seems to me, was clearly advice given to Ms Messer about how best to promote the scheme, explaining why CFA funding was unrealistic and the alternative fighting fund was better.  Further advice was given to Ms Messer on the same point the next day, 26 September, in effect explaining to her how to show that CFA funding was not viable.  

29.	There was then an expanded script of questions and answers provided on 29 September, which included an explanation of why no win no fee was inappropriate for the litigation.  That document was posted on the same SAM group action website in about October.

30.	Further advice was given to Ms Messer on how other firms who might be interested in CFA funding for the litigation might be dissuaded from getting involved.  All those joining the litigation from October 2008 onwards are assumed to have seen the questions and answers document prepared by Mr Lowe and to have signed up to the terms that he had drafted in part in relation to costs and funding.  The first claimants to sign the terms and conditions did so on 3 October.  After October, Mr Lowe then either helped to draft or approved the drafting of monthly review letters sent out to claimants and would-be claimants.

31.	The breaches of duty pleaded in the amended particulars of claim at para.25 are, with one exception, to the effect that Mr Lowe failed to do the things that the claimants complained RWP did not do, or, in one case, reflecting the allegation that RWP should have advised the claimants to seek representation from a firm willing to act on a CFA basis, that Mr Lowe failed to advise the claimants to seek advice from a QC who was prepared to contemplate acting on that basis.  These alleged breaches simply assume that Mr Lowe should have advised in the same way that RWP should have advised if the claimants’ claim against them succeeds.  That is made explicit in some of the answers given to the request for further information, but these answers, for the first time, seem to go further and contend that Mr Lowe “took it upon himself to advise on such matters” and that, despite the lack of formal instructions the funding of the litigation was discussed “on numerous occasions between August 2008 and early 2009” and Mr Lowe gave advice, the particulars of which are given.  That appears to be a reference back to para.21 of the amended particulars of claim, though that is not specifically stated.

32.	The exception to the reflective allegations of breach is in relation to the allegation that RWP had failed to control expenditure on counsel’s fees.  In that respect, RWP plead that Mr Lowe failed to delegate, sufficiently or at all, work undertaken by him to Mr Henderson, or, if Mr Henderson was not available, another competent junior barrister from his chambers.

33.	A request for further information was understandably made in relation to that new allegation.  The request was: 

“Please identify precisely what work it is said should have been delegated to Mr Henderson and how, if at all, such delegation would have avoided the loss or damage in respect of which the Claimants claim and a contribution is sought by RWP.”

34.	The response given by RWP was as follows:

“This is an unreasonable request.  RWP faces a claim pleaded in Paragraph 44(4) of the Particulars of Claim that it failed to monitor and limit the actual expenditure on disbursements and, in particular, counsel’s fees.  As Mr Lowe is well aware it is RWP’s case that it did not breach this duty for the reasons explained in RWP’s Defence.  The plea at Paragraph 25(8) is entirely contingent on a finding that RWP breached its own duty.  It is for the Claimants to make good their own case in this regard.”

35.	In my judgment, the request for further information was not an unreasonable request, but the response was an inadequate response.  No particulars at all are given of an allegation that does not emanate directly from the claimants’ claim.  It is not clear why the particular allegation in para.25.8 is made by RWP or what exactly it amounts to.  RWP are not just passing on the same allegation made against the claimants; they could not do so in this instance.  Instead, they are making a distinct allegation against Mr Lowe, but without explaining properly exactly what is alleged.

36.	So, apart from that issue of delegation to junior counsel, in my judgment, the only fully pleaded allegation of breach of duty against Mr Lowe in the amended particulars of claim is that, as from the time that he was instructed to act on behalf of each claimant, he should have advised such claimants about using a CFA funding regime, even though he was not instructed to do so, or that the fighting fund scheme was doomed, but he failed to do so.  There is no expressly pleaded allegation that Mr Lowe did in fact advise the claimants in particular respects on funding and thereby took on responsibility and assumed a duty of care to advise the claimants on such matters more generally.  All that is pleaded is that Mr Lowe took it upon himself to advise and did advise, though it is not specified who was advised, and that funding was discussed (it is not pleaded with whom it was discussed) on numerous occasions between August 2008 and early 2009.

37.	In my judgment, it is important to bear in mind that the only claim by RWP against Mr Lowe is a claim for an indemnity or contribution.  That can only succeed to the extent that RWP proves that Mr Lowe caused some or all of the same loss for which RWP becomes liable to the claimants (see s.1 of the Civil Liability Contribution Act 1978).  There is no claim by RWP against Mr Lowe for damages on the basis that Mr Lowe was negligent in the advice that he gave to RWP.  The only allegation is that Mr Lowe acted in breach of duties that he owed the claimants.

38.	The following main questions therefore seem to me to arise: first, is it arguable that Mr Lowe, simply because he was instructed to represent the claimants once they had paid their subscription, owed them a duty to advise them generally on funding of the litigation, in the same way that a retained litigation solicitor would be obliged to do so?  Mr Bacon, appearing for RWP, accepted that, apart from the question of whether Mr Lowe voluntarily assumed responsibility by giving some advice, the answer to that question would be no, yet paras.10 to 15 of the amended particulars of claim spelling out the duties owed by Mr Lowe are pleaded on that basis.  In any event, it became clear in argument that Mr Bacon now advances RWP’s case on a more limited and different basis.

39.	The second question, therefore, is: is there a properly pleaded case, including the further information, that reflects the way that RWP now seeks to put its case against Mr Lowe, namely that Mr Lowe voluntarily assumed or became subject to a duty to advise more generally on funding.  The first point here is that there is no averment anywhere in the amended particulars of claim or in the further information that, by providing input to documents intended to be made available to the claimants, Mr Lowe assumed any such duty.  It follows that there is nothing that explains on the basis of what actions of his Mr Lowe became subject to such a duty or how extensive the duty was.

40.	The second point is that, in argument, Mr Bacon stated that RWP’s case was that Mr Lowe, by involving himself in the provision of advice by RWP to the claimants, accepted a responsibility and duty to advise claimants and would-be claimants on matters relating to funding of the action generally and, in particular, to advise, to the same extent as RWP was adjudged liable to advise, on the advantages of CFA and ATE funding.  When asked to be specific about the advice relied on as giving rise to that duty, Mr Bacon identified the drafting of the memorandum of questions and answers which is pleaded at para.21.4 of the amended particulars of claim, the draft terms and conditions of RWP’s retainer by the claimants, which are not pleaded, the terms of the November 2008 review letter, which gave various options relating to the proposed litigation, dependent on funding, which is not pleaded, and, after producing a document which had not been exhibited to a witness statement or included in the bundles, the February 2009 review letter.  This was pleaded, but only in relation to identification of a general funding deficit in para.23.3.

41.	The third point is that the matters pleaded in the further information and in paras.21.1, 21.2 and 21.3 of the amended particulars of claim are, in my judgment, all instances of Mr Lowe advising Ms Messer how best to proceed with and implement the existing funding strategy, not instances of Mr Lowe giving any advice intended to be passed on to the claimants or would-be claimants.

42.	The fourth point is that the basis on which, or when, a responsibility, that is to say a duty of care, was assumed, either to existing claimants or would-be claimants, or both, based on the involvement in drafting those documents is not, in my judgment, adequately pleaded.  

43.	I therefore consider it appropriate to strike out the amended particulars of claim as disclosing no properly arguable case for these brief reasons: first, the amended particulars of claim plead a mirror duty on Mr Lowe generally to advise on funding if RWP is liable to advise on funding.  That, I am satisfied, and to a large extent is now conceded, is not properly arguable as a matter of law.  A barrister does not have the same duties as a litigation solicitor to advise generally on funding of litigation.  RWP therefore cannot simply allege that Mr Lowe had a co-extensive duty of care, which is what the amended particulars of claim in substance do.

44.	Second, what may, and I emphasise “may”, be a properly pleadable case based on a voluntary assumption of a duty to advise, as identified in the course of argument, is not pleaded adequately, and what component facts or parts of an adequate pleading are present are obscured by the existing allegations.  

45.	Third, no draft of a further amended pleading has been provided.  
46.	Fourth, before issuing the application, Mr Lowe’s solicitors wrote to RWP’s solicitors on 22 November last year requesting further information in order to make sure that the application would not be met with a response that the claim was capable of amendment.  In response to that, RWP provided further information and the amended particulars of claim.  It seems to me that Mr Lowe is therefore fully entitled to take the point that, as pleaded, the amended particulars of claim disclose no properly arguable claim, even if, subject to other questions, a properly arguable claim based on an assumption of responsibility to advise can be pleaded.

47.	Fifth, any properly arguable case that there is would be more clearly identified by new particulars of claim focusing on that case, rather than by amendments to the existing amended particulars of claim.

48.	The third main question that was raised before me was whether it was arguable that Mr Lowe was in breach of any duty of care by not advising the claimants in different terms.  Given that I have held that the particulars of claim should be struck out on the basis that the pleaded case does not fairly disclose the case that RWP now pursues against Mr Lowe and does plead a case that cannot succeed, this issue does not strictly arise.  RWP’s case, as it emerged in argument, is that, because Mr Lowe did involve himself in the process of giving advice to claimants or would-be claimants, or both, if the claimants establish, as against RWP, that RWP were in breach of their duty to advise, it necessarily follows that Mr Lowe was also in breach of his duty to the claimants.  There is no distinction therefore on RWP’s case between the duty that RWP owed to the claimants to advise them on funding and the duty that Mr Lowe assumed.  Whether or not Mr Lowe was negligent and in breach of any such duty will depend, in my judgment, in part on exactly how extensive his duty to advise is, as pleaded against him, partly on his responsibility as the barrister instructed by a firm of litigation solicitors and partly on the facts relating to funding that Mr Lowe either knew or should have known.  

49.	Whether any allegation of negligence on the basis now sought to be advanced by RWP against Mr Lowe would have a real prospect of success therefore cannot, in my view, fairly be determined under Part 24 in the abstract, without a properly pleaded case of the extent of the duty to advise that Mr Lowe is alleged to have assumed and particulars of the respects in which the advice given in the four particular documents relied on was negligently wrong and/or additional or different advice should have been given on the basis of his responsibilities and state of knowledge or facts that he should have known at the time.  If RWP seeks to serve replacement particulars of claim for an indemnity or contribution, it must fully plead such matters and Mr Lowe can then consider whether or not any arguable claim is disclosed.

50.	Mr Stewart QC, appearing for Mr Lowe, invited me to go further and find that it is merely fanciful, and not a real possibility, that CFA and ATE funding could have been obtained for the claimants at the relevant time, such that no loss can, in any event, have been caused.  I decline to reach those conclusions.  

51.	As regards whether there is a real possibility of CFA ATE funding being obtainable, the same issue arises between the claimants and RWP and in view of detailed particulars of likely funders having been provided by the claimants in further information, RWP is, in my judgment, right to contend that that is an issue and, however sceptically they may regard it, can only properly be resolved at a trial.  It would be wrong in principle for me to conduct a mini-trial on that issue in the Part 20 proceedings, on the basis of evidence adduced on behalf of Mr Lowe which does appear to support the conclusion that funding on that basis would not have been obtained at the time, without hearing the evidence that may be adduced on behalf of the claimants.

52.	The fourth main question, which, again, strictly does not arise, but I will deal with it very briefly, is whether the allegation that Mr Lowe did not delegate sufficiently is properly pleaded and arguable.  In my judgment, the pleaded and unparticularised case against Mr Lowe in this regard could not be allowed to stand.  The claimants’ case against RWP was that it had allowed or encouraged Mr Lowe to charge fees of up to £100,000 a month without any proper control.  RWP’s allegation against Mr Lowe is not based on anything other than the bills rendered by Mr Lowe and his junior, Mr Henderson.  Mr Lowe is clearly embarrassed in dealing with the allegation because no particulars are given of what should have been delegated to Mr Henderson that was not in fact so delegated.

53.	Given that RWP was asked for particulars and declined to provide them, I would have struck out para.25A.8 of the amended particulars of claim for this reason in any event. 

54.	 Accordingly, for the reasons that I have given, I strike out the amended particulars of claim in the Part 20 claim.  RWP must consider whether it will serve new particulars of claim pleading the claim against Mr Lowe as it emerged in the course of argument and to which I have referred in this judgment.  I will hear parties on how long RWP should have to do so, but if it elects not to do so then clearly it must then serve notice withdrawing the Part 20 claim.
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