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England and Wales High Court (Senior Courts Costs Office) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Senior Courts Costs Office) Decisions >> Rahimian & Anor v Allan Janes LLP [2016] EWHC B18 (Costs) (04 August 2016) URL: https://www.bailii.org/ew/cases/EWHC/Costs/2016/B18.html Cite as: [2016] EWHC B18 (Costs) |
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SENIOR COURTS COSTS OFFICE
London, WC1A 2LL |
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B e f o r e :
____________________
(1) DR MEHRDAD RAHIMIAN(2) SCANDIA CARE LIMITED |
Claimants |
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| - and - |
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| ALLAN JANES LLP |
Defendants |
____________________
Mr Nicholas Cropp (instructed by Allan Janes LLP) for the Defendants
Hearing dates: 21st June 2016
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Crown Copyright ©
Master Gordon-Saker :
(1) The jurisdiction of the High Court to make orders for the delivery by a solicitor of a bill of costs, and for the delivery up of, or otherwise in relation to, any documents in his possession, custody or power, is hereby declared to extend to cases in which no business has been done by him in the High Court.
The background
Rahimian,
is a director of and shareholder in the Second Claimant. On 8th September 2011 Dr
Rahimian
consulted the Defendants in relation to a claim issued in the Central London County Court against the Claimants. The claim involved allegations of trespass and infringement of a right to light arising out of the redevelopment of a property in High Wycombe [see Ottercroft Ltd v (1) Scandia Care Ltd (2)
Rahimian
(CA unrep. 6 July 2016)]. On 15th September 2011 the Defendants wrote to the Claimants recording the advice that had been given and the terms of the retainer. In relation to the terms, the letter was surprisingly succinct, setting out only the hourly rate to be charged by the author and an estimate of the costs of the action. The estimate was "between £15,000 and £25,000 plus VAT and disbursements". An application by the opponent for an interim injunction might add "costs of between £5,000 and £10,000 plus VAT".
Re: Claim by Ottercroft Limited Interim account for the work undertaken on your behalf in respect of this matter to the date hereof.
Re: Claim by Ottercroft Limited Final Account for the work undertaken on your behalf in respect of this matter to the date hereof.
Rahimian's
assistant, wrote to Mr Harriman:
Following our meeting with you and Mr Hitchen last week, we would ask you to stop any further work in the above matter and transfer all papers and files to Mr Simon Butler, the barrister now instructed by DrRahimian,
upon discharge of your fees to date.
For the avoidance of doubt, Dr Rahiminan does intend to continue his complaint regarding the way in which this matter has been conducted.
I note that you do not wish to pursue your complaints against this firm or me I am preparing files for this transfer. I will also prepare a final account for payment so my fees and counsel can be discharged as you direct so that the papers can be sent to Mr Butler
I am sorry, but you appear to have misunderstood my email content.
DrRahimian
does intend to continue his complaint against the way the conduct of this matter has been handled. In particular the question of costs. We therefore await hearing from you with your final invoice so that the file may be transferred as soon as possible please.
I enclose a final bill, statement of account and narrative so this firm's accounts can be discharged and the files transferred to your new Counsel.
The first proceedings
Pursuant to s.70(2) Solicitors Act 1974 there be an Order in standard form for the detailed assessment of the series of on account invoices commencing on 30th September 2011 and culminating in a final bill numbered 158270 dated 22nd July 2014 delivered by the Defendant to the 2nd Claimant on 23rd July 2014.
The current proceedings
The evidence
Rahimian,
Mr Carlisle and Ms Moore. Dr
Rahimian's
statement was very short. He explained that he had no understanding of the legal meaning of a final statute bill. In paying the Defendants in full, his intention was simply to secure the release of his papers in the underlying litigation. The final invoice looked no different to the earlier bills. At paragraph 7 he stated:
It is therefore perplexing to see how the Defendants can assert that by me paying the last in a series of bills for the sole purpose of obtaining my file of papers an inference can be drawn that I had agreed or in fact understood that a final statute bill, or a final bill of any sort, had been delivered.
Rahimian
to attend the hearing for cross-examination. Nothing much emerged from that. Dr
Rahimian
told me that he found the billing confusing. He reiterated that the only thing that he was interested in was obtaining his papers. Insofar as it may turn out to be relevant, I was given no cause at all to disbelieve anything in Dr
Rahimian's
oral evidence and I accept that evidence completely.
The nature of the invoices
63 I accept the principle expressed in Lord Campbell CJ's judgment in Cook v Gillard 1 E & B 26 , 3637 that:
the defendant who undertakes to prove that the bill is not a bona fide compliance with the Act cannot found an objection upon want of information in the bill, if it appears that he is already in possession of that information a client has no ground of objection to a bill who is in possession of all the information that can be reasonably wanted for the consulting on taxation.
In Eversheds v Osman [2000] 1 Costs LR 54 , 6163 Nourse LJ posed this test in not dissimilar terms, viz: is the client unable to judge as to the justice of the amount of the fees which are charged?
64 Thus I would accept the proper principle to be that there must be something in the written bill to indicate the ambit of the work but that inadequacies of description of the work done may be redressed by accompanying documents (as in Eversheds v Osman where it was doubtful whether the bill on the face of it would have been sufficient) or by other information already in the possession of the client. That, it seems to me, would serve the purpose of the Act to give the client the knowledge he reasonably needs in order to decide whether to insist on taxation. If the solicitor satisfies that then the bill is one bone fide complying with the Act.
70 This review of the legislation and the case law leads me to conclude that the burden on the client under section 69(2) of the Solicitors Act 1974 to establish that a bill for a gross sum in contentious business will not be a bill "bona fide complying with this Act" is satisfied if the client shows: (i) that there is no sufficient narrative in the bill to identify what it is he is being charged for, and (ii) that he does not have sufficient knowledge from other documents in his possession or from what he has been told reasonably to take advice whether or not to apply for that bill to be taxed. The sufficiency of the narrative and the sufficiency of his knowledge will vary from case to case, and the more he knows, the less the bill may need to spell it out for him. The interests of justice require that the balance be struck between protection of the client's right to seek taxation and of the solicitor's right to recover not being defeated by opportunistic resort to technicality.
Rahimian
described the Defendants' billing as confusing. It is clear that the Claimants were concerned about the Defendants' charges at the time that the retainer was determined in July 2014 to the extent that Dr
Rahimian intended "to continue his complaint" as indicated in the email from Ms Gomes to Mr Harriman dated 21st July 2014 timed at 14:36. But there is nothing to suggest that they had the necessary information before 15th August 2014 when the Defendants' files were transferred to their directly-instructed counsel. I get that date from the email from Mr Harriman to Mr Carlisle dated 24th November 2015.