Radcliffes Le Brasseur (a firm) & Anor v Wickes & Ors

The Defendants instructed the Claimant firm of solicitors in relation to certain matters in November 2001. A total of 13 bills was rendered to the Defendants between 31 January 2002 and 30 November 2002. The first two of these were paid in full and the third was mostly paid, the relevant payments having been made on 8 May 2002 and 26 June 2002.

No further payments were made and on 29 July 2003 the Claimant issued a claim in the Queens Bench Division for the balance claimed on the bills which had not been paid in full, namely £61,392.99 plus interest. By a Defence and Counterclaim dated 28 August 2003 liability was denied on a variety of grounds and, among other things, the Defendants sought an order for taxation of the bills upon which the action was brought and the paid bills.

At a case management conference on 21 November 2003 an order was made by Master Leslie for detailed assessment under the Solicitors Act 1974 ("the Act") of the bills on which the action was brought and an enquiry as to whether the Defendants are entitled to detailed assessment of the costs comprised in bills numbered 251450, 252025 and 253714 being the bills which had been rendered to the Defendants between May and June 2002, the first two of which had been paid in full.

The Claimant has conceded that there must be a detailed assessment of the bill numbered 253714 which has been partly paid. Therefore the enquiry which the court has to carry out relates only to the first two bills which had both been fully paid for over a year by the time the proceedings were issued.

Sub-section 70(4) of the Act states:

The Claimant’s case is that sub-section 70(4) of the Act applies to bills numbered 251450 and 252025 and represents an absolute bar to the taxation (or detailed assessment) of those two bills.

The Defendants case is that, on the contrary, the retainer was an entire contract and that all the bills must be taken as a whole and not as individual statute bills. On that basis they contend that they were not out of time in making their request for detailed assessment under Section 70 of the Act because time would run from the date of delivery of the last of the bills on 30 November 2002.

Alternatively the Defendants argue that the court has an inherent jurisdiction to order detailed assessment pursuant to the decision in Re Park [1889] 41 ChD 326. They further argue in the alternative that the first two bills are not proper bills at all because they do not satisfy the requirements of sub-section 69(2) of the Act. There is, they say, no sufficient narrative and that the Claimant should be required to deliver, in lieu of those bills, detailed bills pursuant to sub-section 64(2) of the Act. Mr Shugg, representing the Defendants as one of their directors, cited the judgment of Lord Justice Ward in Ralph Hume Garry v Gwillim [2003] 1 Cost LR 77 in support of those last contentions.

Mr Morgan QC for the Claimant referred to a letter addressed to Mr David Wickes dated 14 November 2001 which is in the bundle put before the court. He submitted that the letter showed that it was the parties intention that regular bills would be sent and that this showed that each bill was to be a statute bill and not simply a request for a payment on account.

Mr Shugg said that the letter had never been received and that the letter recently sent to the Claimant making this point had not been put into the bundle.

Although Mr Morgan invited me to infer that the letter had indeed been received by the Defendants, I was not asked to give directions on any evidence which might be given on the matter. There being no evidence as to whether or not the letter was delivered to the Defendants, I consider that the only course open to me is that I should proceed as if it had not been delivered.

Mr Morgan submitted that no reasonable client receiving the bills (No.251450 dated 31 January 2002 and No.252025 dated 28 February 2002) would consider them to be mere requests for payment on account. In form they are clearly "bills" for the period in question ie, 15 November 2001 to 31 January 2002 and 1 February 2002 to 28 February 2002.

Each bill is headed "invoice" a description which, he submitted, was inappropriate for a request for a payment on account. Also each bill has at its foot on the front page a note which says that this "account" (a term which Mr Morgan submitted was inconsistent with a request for a payment on account) is due for "payment now".

Mr Morgan also pointed out that each note also refers the client to his/its rights to taxation under the Act. Such advice would, he submitted, be completely inappropriate for a mere request for payment on account.

Mr Morgan submitted that in all the circumstances any client receiving these invoices would know that they were "bills" as opposed to requests for payment on account. By way of a cross-check he invited the court to ask itself what would the client’s reaction have been if the Claimant had sent them a further bill "topping up" these invoices. He submits that the clients would have been entitled to object strongly to any such further charge.

Mr Morgan submitted that in any case an agreement that the bills were to be statute bills is to be inferred from the contents of the invoices and the conduct of the parties. He referred to the judgment of Lord Justice Simon Brown in Abedi v Penningtons [2000] 2 Costs LR 205, and particularly to the passages at page 219 to the bottom of page 220 in support of this contention.

In my judgment it would be right to infer that (by paying the invoices which were so clearly intended to be bills and not simply requests for payments on account) the Defendants agreed that the Claimant firm was not acting for them on an "entire contract" basis but was instead entitled to deliver bills which were "due for payment now". Accordingly, subject to the Defendants’ other submissions, a detailed assessment of these bills cannot be ordered by reason of sub-section 70(4) of the Act.

The Defendants argued that the court should (if the bills were found to have been statute bills) invoke its inherent jurisdiction to order taxation. Mr Shugg referred to Re: Park and other authorities. He referred to special circumstances which he said were demonstrated by two letters written by Mr David Wickes to Gillian Benning of the Claimant firm dated 7 February 2002 and 13 December 2002 copies of which are in the bundle. He also referred to the form of the bills and to his contention that the court should order that detailed bills be delivered pursuant to sub-section 64(2) of the Act.

In my judgment the court has no inherent jurisdiction in the circumstances of this case to order the detailed assessment of these bills because sub-section 70(4) of the Act applies. That point is clear from the decision of the House of Lords in Harrison v Tew [1990] 2 AC 523 (H.L(E)).

In his speech in that case, Lord Lowry said at page 537 at G:

It follows from this that, as Mr Morgan submitted, the jurisdiction to refer a bill for taxation outside the powers under Section 70 and 71 is not a free standing jurisdiction creating a cause of action in its own right. It simply provides a machinery for quantifying costs where a client has a cause of action or defence on other grounds.

Examples of the exercise of that jurisdiction can (as Mr Morgan pointed out) be found in Allen v Jarvis [1869] LR 4 Ch App 616 (the right of a beneficiary to challenge, out of the statutory time limits, an executor’s right to claim indemnity from the estate in respect of charges of the solicitor/executor), Re: Park (the right of an executor to taxation out of the statutory time limits of a bill which had been delivered to the deceased testator by solicitors who were claiming the balance due) and Turner v Polomo [1999] 4 All ER 353 (the right of a client who is sued by his solicitor for the amount of his charges to challenge the amount claimed and for that purpose to have them assessed by the court outside the statutory time limits).

Mr Shugg contends that the Defendants do have a cause of action and that this is contained in their Defence and Counterclaim. However that argument cannot be relevant now because Master Leslie has ordered (in paragraph 2 of his Order of 21 November 2003) an enquiry as to whether the Defendants are entitled to an assessment of the costs in the three bills and:

Paragraph 3(b) of the Order provides that thereafter the Claimant:

It therefore follows, in my judgment, that the Defendants’ Defence and Counterclaim no longer have any relevance on this issue. Master Leslie’s Order deals only with the detailed assessment of the bills which form part of the claim and of the previous bills if, following enquiry, it is found that the Defendants are entitled to "an assessment of the costs therein".

I think that it also follows that, had Master Leslie considered that the court’s inherent jurisdiction should be invoked to enable the bills to be "moderated" under the "Re: Park principles", he would have made an Order to that effect. He did not do so and I do not think that, in those circumstances, having regard to the Order he made, it would be appropriate for me to consider doing so myself.

Mr Shugg’s submission that the two bills do not satisfy the requirements of sub-section 69(2) of the Act cannot, in my view, be right. Both of the bills numbered 251450 and 252025 are accompanied by ample details of the work which was done and fully satisfy the guidelines set by Lord Justice Ward in his judgment in Ralph Hume Garry v Gwillim.

Mr Shugg’s submission that the Claimant should be required to deliver details of those two bills pursuant to sub-section 64(2) of the Act also cannot, in my view, be right. I do not consider that the bills are gross sum bills, but, even if they are, no action was commenced on them and so sub-section 64(3) of the Act does not apply to them.

Accordingly I find, for the reasons already given, that the Defendants are not entitled to an assessment of the bills of costs numbered 251450 and 252025.

If the parties do not attend or alternatively provide written submissions on those matters when this judgment is handed down, I will fix another date at which the submissions about the costs of this enquiry and any request for permission to appeal will be heard together with submissions as to the conduct of the detailed assessment of the remaining bills. If the parties do attend, I will hear those submissions then.