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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Vlamaki v Sookias & Sookias [2015] EWHC 3334 (QB) (20 November 2015) URL: http://www.bailii.org/ew/cases/EWHC/QB/2015/3334.html Cite as: [2015] EWHC 3334 (QB), [2015] 6 Costs LO 827 |
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QUEEN'S BENCH DIVISION
On appeal from the order of Master Campbell
in the Senior Costs Office 2 February 2015
giving effect to his judgment delivered on 15.12.2014
Case No: CC 1400428
Strand, London, WC2A 2LL |
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B e f o r e :
(sitting with assessor, Master Haworth)
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Dr Zoe Vlamaki |
Claimant (Respondent) |
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- and - |
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Sookias & Sookias |
Defendants (Appellants) |
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Mr Roger Mallalieu (instructed by Sookias & Sookias) for the defendant (appellant)
Hearing dates: 13 and 14 July 2015
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Crown Copyright ©
Mr Justice Walker:
A. Introduction and overview
Mr Sookias was afforded an opportunity to render fresh bills in substitution for the bills delivered on account, but did not avail himself of his chance to do so.
B. The first aspect: interim statute bills?
13 … Where a solicitor issues to his client a bill of costs which complies with the requirements of the Solicitors Act 1974 it is known colloquially as a "statute bill". Section 70(1) of the Act gives the client the right, within one month of delivery of the bill, to apply to the High Court for the bill to be assessed, without requiring any sum to be paid into court. If no such application is made, the absolute right to assessment is lost. However, if a statute bill has not been paid and the client applies to the High Court for assessment of the bill within twelve months from delivery of the bill, the combined effect of s 70(2) and (3) is that the High Court may allow assessment (and I am advised by my assessors usually does allow assessment), on such terms as the court thinks fit. If the bill remains unpaid and twelve months have expired from delivery of the bill, the court may only order an assessment if special circumstances are shown.
14 The position after a statute bill has been paid is somewhat different. The client still has the absolute right to an assessment before the expiry of one month from delivery of the bill. After that, but only up to twelve months from the date of payment, if the client applies for assessment, special circumstances need to be shown. No assessment at all can be ordered after the expiration of twelve months from payment. Section 70(4) creates an absolute bar. For completeness I should mention that there are additional provisions where the solicitor has obtained judgment on the bill, but this does not arise in the present case.
The potential difficulties and expense faced by a client who can only challenge regular bills by instituting multiple assessment proceedings – against the same solicitor who is actively handling a number of current matters … – are obvious. Further, the choice is between a right which begins to diminish after one month from the first regular bill and a right which does not begin to diminish until a later and, for the client, obviously more practicable time.
5 MONIES ON ACCOUNT
5.1 It is normal practice to ask clients to pay sums of money from time to time on account of the charges and expenses, which are expected in the following weeks or months. This helps to avoid delay in the progress of their case.
…
5.3 When we put payments on account towards your bills, we will send you a receipted bill. It is important that you understand that your total charges and expenses may be greater than any payments on account.
5.4 Payments on account are paid on account of the work in progress. Thus, we shall not be accounting to you for any interest accrued thereon.
5.5 All payments held in our client account, be it on account of costs or in respect of payments to be made (particularly in conveyancing or commercial transactions) are held at your own risk. Therefore we may not be liable to repay the same in the event the money is lost due to banking failure.
6 BILLING ARRANGEMENTS
6.1 To help you budget, we will send you a bill for our charges and expenses at the end of each month while the work is in progress. We will send you a final bill after completion of the work.
6.2 If not paid from monies on account, payment is due to us on delivery of a bill. We reserve the right to charge you interest on the bill at 4% over the base rate prevailing from time to time from the date of the bill if you do not pay our bill within this time …
6.3 If you have any query about your bill, you should contact us straight away.
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10 TERMINATION
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10.2 We may decide to stop acting for you only with good reason, for example, if you do not pay an interim bill or comply with our request for a payment on account. We must give you reasonable notice that we will stop acting for you. If you or we decide that we should stop acting for you, you will pay our charges up until that point. These are calculated on an hourly basis plus expenses as set out in these terms and conditions.
11 COMMUNICATION … AND COMPLAINTS
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11.4 Once a formal complaint is made we shall handle it in accordance with our written complaints procedure which is set out below namely:-
- We will ask you to set out your complaint in writing within 14 days.
- This will then be considered by this firm's client care partner or if they cannot deal with it for any reason, by another partner.
- We will endeavour to give an initial response within 14 days and give you an estimate as to how long it will take for a substantive response (if applicable) which should not be more than a further 28 days.
- We would endeavour to put forward our plan for resolution of the matter in our substantive response and confirm whether it is a final written response.
(1) if there were an ambiguity on a fundamental aspect of the terms and conditions that cannot otherwise be resolved then the ambiguity is to be determined against the solicitors; and
(2) the factual matrix was that Mr Mallalieu's client was a firm of solicitors while Dr Vlamaki was not a lawyer.
35. … Mr Dunne submits that the reference [in clause 6.1] to sending "a final bill after completion of the work" is incompatible with the contention that the bills rendered were self-contained. I accept that the clause is unhappily expressed but I do not think the conclusion he invites me to draw can be reached as easily as that. Mr Mallalieu's riposte is that all that is meant by this clause is that the firm will submit a final bill at the end of the case for the work done since the last bill, and equally, nothing in having provided for that, is incompatible with the proposition that all bills were "final".
36. It is certainly arguable that that is what Mr Sookias intended was to happen, but in my judgment, it is not clear. In the same way that a clause in Rosen and Co.'s terms of business which told the client that "regular statutory final bills" would be sent but that there was a "right to have an assessment at any time [original emphasis] in the High Court", was held by Spencer J to be ambiguous in Bari [33], I also find clause 6.1 to be ambiguous. It can be asked rhetorically, why, if all bills were statute bills, is it necessary to say that a final bill will be sent unless all the previous bills were not final but something else, namely interim on account of a final bill? There is also the reference to "interim bill" in [clause] 10.2. Again I ask rhetorically, if the bills were final bills, what place at all does the word "interim" have in the termination clause? In my judgment, these are examples of "unsatisfactory ambiguities" (to adopt with respect the description used by Spencer J in Bari at [33] and [34]), a conflict which I am bound to resolve (as the learned Judge did) in Dr Vlamaki's favour as Mr Mallalieu accepts that I must. For that reason, Mr Mallalieu has not made out Sookias & Sookias' case for statute bills relying on [clause] 6.1.
(1) getting payments in advance for work which is yet to be done and expenses which are yet to be incurred, and putting such payments into their client account;
(2) rendering monthly bills which do not go beyond costs and expense thus far incurred, and which once delivered will enable them immediately to move money from their client account into their office account in payment of the amount billed; and
(3) enabling them, to the extent that funds in the client account are insufficient to meet a monthly bill, to ask the client to make immediate payment of the unpaid balance with interest to the date of payment.
C. The second aspect: prematurity
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[2] You have asked if any further sums are due to this Firm from Dr Vlamaki other than those in the attached Statements of Accounts.
[3] Whilst there may be further unbilled time on these matters, we are not proposing to invoice this and therefore there are no further sums due from Dr Vlamaki.
[4] I note that you state that Dr Vlamaki will probably make an application for assessment under section 70 Solicitors Act and you are awaiting instructions.
[5] Of course she may be entitled to do this but this does not alter the current position that our invoices have been outstanding for many months now.
[6] Therefore, if we are not served with such an application within 14 days from the date of this letter I shall have no alternative but to issue proceedings for recovery of the outstanding sums plus interest and costs.
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there is no question of the … October letter having converted the on-account bills into statute bills.
D. Conclusion