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England and Wales High Court (Senior Courts Costs Office) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Senior Courts Costs Office) Decisions >> Khans Solicitors v Chifuntwe & Anor  EWHC 90220 (Costs) (17 February 2012)
Cite as:  EWHC 90220 (Costs)
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SENIOR COURTS COSTS OFFICE
London, EC4A 1DQ
B e f o r e :
| KHANS SOLICITORS
|- and -
|(1) MR CHAMA CHIFUNTWE
(2) SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr Oliver Radley-Gardner (instructed by Treasury Solicitor) for the Second Defendant
The First Defendant did not appear and was not represented
Hearing date: 16 January 2012
Crown Copyright ©
i) A declaration that costs which SSHD were ordered to pay to Mr Chifuntwe in the Judicial Review proceedings under the terms of a consent order dated 29 April 2010, have not been agreed and that there should be a detailed assessment of those costs.
ii) A declaration that Khans are entitled to a charge securing the firm's interest in Mr Chifuntwe's unpaid fees regarding any sums paid and/or any sums to be assessed as due to him with regard to the costs and disbursements claimed in the Judicial Review proceedings (pursuant to Section 73 Solicitors Act 1974); alternatively a declaration that Khans are entitled to a preserving lien over all or any such property.
iii) An order for payment of £6,000.
• 29 April 2011 (Order sealed 21 June 2010) – Judicial Review proceedings settled on terms that Mr Chifuntwe have leave to withdraw his application: SSHD to pay his reasonable costs to be assessed if not agreed.
• 2 June 2011 Khans serve Notice of Commencement for assessment of the inter partes costs on SSHD plus their bill seeking £9,497.33.
• 13 July 2011 Kain Knight ("KK") costs draftsmen for SSHD offer £6,000 in settlement of the bill.
• 2 August 2011 Mr Chifuntwe writes to Kain Knight as follows:"This notice confirms that with effect from 2 August 2011 I have withdrawn consent from Khans Solicitors and Chambers of Mr Sibghat Kadri QC to be my representatives and they have ceased representing my interests regarding this matter and any related issues to the same said matter.I further confirm that upon considering your letter dated 13 July 2011 I have accepted your client's (TSOL) [the Treasury Solicitor on behalf of SSHD] offer of £6,000 equivalent to my recoverable money save any costs that may arise due to your clients future delays from the date of this notice. Please make payment in my name Chama Chifuntwe and send cheque including future correspondence directly to me on the above address. …"
• 4 August 2011 Khans write to Mr Chifuntwe:"Please do not involve yourself with legal costs since this has nothing to do with you. Also these are technical matters and certain rules and regulations apply. You as a client have no say so please do not spoil things by contacting Kain Knight. These are our costs and only reasonable costs based on rules can be claimed …"
• 17 August 2011 Kain Knight offer £7,125 to Khans to settle the bill (letter not produced to the Court but see paragraph 3 of the Claim Form).
• 19 August 2011 Kain Knight fax Khans stating:"That as the First Defendant had purported to accept the offer of £6,000 and the Court had by that time indicated that the Claimant was no longer on the record with regard to the JR claim (presumably following the Defendant filing a notice that he was acting in person), on SSHD's instructions, the offer of £7,125 was withdrawn."(see Claim Form paragraph 4).
• August/September is written by Khans to SSHD via the Treasury Solicitor:"In an effort to prevent £6,000 in costs being released to the Defendant as it was the Claimants' position that no valid compromise on the question of costs had been reached …"(see Claim Form paragraph 5)
• 21 September 2011 Khans issue application pursuant to CPR 23 in the Administrative Court:"as the SSHD had indicated it would release the £6,000 to the Defendant despite being aware of the Claimant's concerns"(see claim form paragraph 6).
• 19 October 2011 application struck out by Thirwell J on grounds that:"This application is misconceived. The dispute is between the Applicant Solicitors and their client. There is no public law element. It is not a matter for the Administrative Court."
• 9 November 2011 payment of £6,000 made by SSHD to Mr Chifuntwe.
• 23 December 2011 Part 8 claim form issued out of the Senior Courts Costs Office.
THE SUBMISSIONS FOR KHANS
"… and therefore whether there is a litigation pending or not, if the solicitor for the Defendant meets the Plaintiff and effects a compromise with him, that compromise is binding upon the Plaintiff or the Defendant, as the case may be, notwithstanding that up to that time he had been represented by a solicitor. That is consonant with common sense as the rule itself; but what the Court has also said is that it must be done honestly and in a straightforward way to get rid of the litigation for the sake of peace, and not with a view to depriving the solicitor of his costs. If the one solicitor meeting the party on the other side, or the two parties compromise knowing of the lien of the solicitor and intending to defeat it, that shall not be allowed; and the only question, therefore, is whether that was the intention. That runs through all these cases as, in The Hope (1), where Lindley LJ says:
"There is no rule that the parties may not compromise an action without the intervention of their solicitors. They must, however, do so honestly and not intend to cheat the solicitors of their proper charges."
The word "cheat" is not a bit too strong: the Master of the Rolls also uses it."
"(b) any person who has given to the receiving party notice in writing that he has a financial interest in the outcome of the assessment and wishes to be a party accordingly"
THE SUBMISSIONS FOR SSHD