David Wyld & Co, Solicitors v Dadourian & Anor

David Wyld and Co., a firm of solicitors (the Claimants), applied for summary judgment in respect of their claim for outstanding fees, contained in two separate bills, which had been incurred in complex civil litigation in the High Court, in which they acted for Mr and Mrs Dadourian, the Defendants.

Master Roberts heard the Claimants’ application on 23 November 2010. The Defendants did not appear at that hearing and nor did they arrange for any representation. Master Roberts refused their request for an adjournment and gave summary judgment for the Claimants, pursuant to CPR 24, in the sum of £265,420.28, together with interest and costs.

A cross-application made by the Defendants, dated 1 July 2010, was also before Master Roberts on 23 November, namely an application for detailed assessment of all the Claimants’ bills, pursuant to section 70 Solicitors Act 1974. This application was dismissed.

There are now two applications before me arising out of the Master’s orders. First, there is a renewed application by the Defendants for permission to appeal against both orders. Permission was initially refused on the papers. On 18 March 2011 Davies J. adjourned the oral hearing of the Defendants’ renewed application for permission, in order for the transcripts of Master Roberts’ judgments to be obtained. To avoid delay, he ordered a “rolled-up” hearing, with the appeal to follow if permission were granted. He also ordered that the Defendants’ request to amend their grounds of appeal should be dealt with on the same occasion.

The second application before me is the Defendants’ application, pursuant to CPR 23.11(2), for Master Roberts’ orders to be set aside on the basis of their non-attendance at the hearing on 23 November. This application was made out of time, on 31 March 2011, but I am asked to deal with it on the basis that the relevant material is the same for both applications; that the appeal was brought in time; and that no prejudice has been caused to the Claimants by the delay. The substantive grounds for setting aside the orders are essentially the same as those which are advanced in support of the appeal. I am asked to set aside Master Roberts’ judgments and to give directions for the service of a Defence and for other consequential steps in the action.

I have had the benefit at the hearing before me of written and oral submissions from Mr Edwards, now appearing for the Defendants, and from Mr Ferris, for the Claimants, who also appeared below.

The issues raised are essentially these:

As is clear from Master Roberts’ judgments, there is a lengthy history to this litigation and I need to summarise the main features, in order that the issues arising before me can be properly understood.

The original High Court action involved two separate branches of the Dadourian family and their associates, both of which branches were involved in international trade and investment. Mr and Mrs Dadourian were third and fourth defendants respectively in a claim brought by one branch of the family against a total of 16 defendants, seeking damages for fraudulent conduct.

It appears that, during the period 1998 to 2003, an arbitration had taken place between Dadourian Group International (DGI) and a company called Charlton, which was in the control of Mr and Mrs Dadourian. Charlton lost the arbitration, but had no money to satisfy the award. The successful party, DGI, which was controlled by a separate branch of the Dadourian family, then issued a claim in the High Court in February 2004, against Mr and Mrs Dadourian and others, seeking to recover from them personally the amount outstanding under the arbitrator’s award, a sum of over £3 million. There were at least four main causes of action, including fraudulent misrepresentation.

Mr and Mrs Dadourian were initially represented by Kingsley Napley and then by Addleshaw Goddard LLP, who ceased to act for them in November 2005.

The substantive trial, heard in the spring of 2006, was preceded by a series of contested interim applications for disclosure of assets alleged to belong to Mr and Mrs Dadourian and to the first named Defendant, a former solicitor called Paul Simms, who was struck off the record in 2004 following disciplinary proceedings against him by the Law Society. David Wyld and Co. came on the record as acting for Mr and Mrs Dadourian shortly before they applied to vary a worldwide freezing order, granted earlier on in the proceedings, on the basis that they needed to raise funds for the forthcoming trial.

Inconsistencies in the evidence provided on this application led to an order for cross-examination of the deponents of affidavits, and Mann J. presided over the cross-examination of Mr and Mrs Dadourian.

The Dadourians’ application was then listed to be heard by Mann J. on 8 February 2006, when the trial was due to start some three weeks later. However, their application was suddenly withdrawn late on 7 February, leading to an application for costs against the Dadourians on an indemnity basis. Mann J. found that assertions which had been advanced by the Dadourians in support of their application were not credible, and that they had sought “to pull the wool over the court’s eyes”. He made an award of indemnity costs against them on the basis that,

“… the material made available to me, and in particular the reasons for abandoning it, tend to indicate that this application was always known to be an application which could not properly or sensibly be made and/or that it was made on a false basis or could be demonstrated to be made on a false basis. The Dadourians have abandoned it because they acknowledge that they have, for one reason or another, been caught out …”

Warren J. heard the substantive trial over 29 days. Mr and Mrs Dadourian were found to be personally liable for the arbitral award, on the basis of fraudulent misrepresentation, and the Judge ordered them to pay damages to be assessed, together with 75% of DGI’s costs of the action. He also made orders for an interim payment on account of the claimants’ costs, in the sum of £885,000.00, which gives some indication of the scale of the costs incurred in this litigation.

Notwithstanding his findings as to the Dadourians’ dishonesty, Warren J. gave them permission to appeal against his decision on fraudulent misrepresentation. However, before the appeal was heard in December 2008, some further documentation was disclosed to DGI by an aggrieved third party. That documentation indicated that Paul Simms had sought to conceal Mr and Mrs Dadourian’s assets, and that Mrs Dadourian had known about this.

There was then further litigation about the admissibility of this documentation, which the Dadourians claimed was privileged. At the conclusion of a seven-day hearing, between April and June 2008, Patten J. held that the documents were admissible. He also found that Paul Simms had been providing “business services” to various clients, including the Dadourians, since 2002 and that those services had “undoubtedly included legal advice in relation to this litigation.”

As a result of Patten J.’s judgment the appeal hearing was preceded by an application to strike out the appeal on the grounds of the Dadourians’ abuse of process. On DGI’s application for security for costs the Court of Appeal made an order requiring the Dadourians either to make full disclosure of their assets or to pay the sum of £175,000.00 into court (or offer the equivalent bank guarantee). The Dadourians chose to pay the stipulated sum into court, rather than disclose their assets.

The application to strike out the appeal was dismissed but, by a judgment handed down by the Court of Appeal on 13 March 2009, the Dadourians and Mr Simms lost their substantive appeals and were ordered to pay the costs of the appeal.

On the Dadourians’ instructions, counsel then drafted and presented a petition for leave to appeal to the House of Lord, but the petition was subsequently dismissed.

The following is not in dispute. The Claimants acted for Mr and Mrs Dadourian (the Defendants) between January 2006 and December 2009. Between January 2006 and July 2009 the Defendants paid £1.07 million in fees to the Claimants. The pleaded claim, following a correction due to arithmetical error, is for £265,420.28 and it is a claim for those fees incurred from 12 November 2008 to 18 December 2009 in respect of the proceedings before the Court of Appeal, including the strike out application and the substantive appeal.

The two outstanding bills were delivered in December 2009, for the periods 12 November 2008 to 15 January 2009 and from 16 January to 18 December 2009 respectively. Of those fees, £220,570.79 had already been assessed in a party and party taxation completed in January 2010. As is apparent from the bills themselves and the attached fee notes, almost the entirety of the total sums outstanding is due in disbursements, for the fees of the two counsel instructed on behalf of the Defendants, Stuart Cakebread and Juliet Levy.

Both bills included the following words:

“You have the right to object to this bill by way of the firm’s complaints procedure and/or by making a complaint to the Legal Complaints Service and/or by applying to the Court for an assessment of the bill under part III of the Solicitors Act 1974.”

The Defendants made no objection and no complaint in respect of either the solicitors’ or counsel’s fees contained in these two bills. Nor did they make any application for an assessment.

The Claimants received no response from the Defendants and, on 26 March 2010, commenced these proceedings. They obtained leave to serve the proceedings on the Defendants outside the jurisdiction at their known addresses in Paris, France and in California, USA. The Defendants acknowledged service in April 2010. Their case in summary was that they had overpaid the Claimants and would be applying to have all the Claimants’ bills assessed by the costs court.

On 4 June 2010 the Claimants applied for summary judgment. Approximately three weeks later, in an Application Notice dated 1 July 2010, the Defendants responded with a cross-application seeking a stay of proceedings pending a detailed assessment of all the Claimants’ bills, going back to 2006. The basis of that application was said to be that “the bills of the Claimant were interim bills and the Claimant only ceased acting for the Defendants in February 2010.”

In his first witness statement served in support of that cross-application, dated June 2010 and made on behalf of both Defendants, Mr Dadourian contended, for the first time, that the Claimants had acted contrary to or without their instructions; and that their negligence (and the negligence of counsel) had caused them significant losses. In Mr Dadourian’s second witness statement, dated 22 October 2010, it appears to be suggested that the reason for their failure to bring proceedings against the Claimants and counsel in professional negligence is due to a lack of funds.

The hearing of the Claimants’ application for summary judgment was originally fixed for 13 July 2010. However, in view of the lack of court time available to deal in addition with counter applications made by the Defendants, the Claimants applied for an adjournment which was unopposed. On 12 July Master Roberts therefore adjourned the hearing and refixed it for 23 November 2010.

It appears that another firm of solicitors, Barnes and Partners, came on the record on 6 September 2010 as acting for the Defendants, but came off it again on 2 November 2010. What then happened is set out in Master Roberts’s first judgment at paragraphs 4 – 6, as follows.

Mr Dadourian wrote to the Court by email on 5 November (not copied to the Claimants) from his address in Paris, asking for the hearing to be adjourned once again. He referred to the fact that the Defendants were now acting in person again and were trying to find “a replacement law firm”. He referred in addition to his age (he is now aged 90) and to his ill-health; and he attached a medical report dated 7 October 2010, in French, referring to his present condition and the difficulties which it causes him.

Mr Dadourian referred also to his wife’s ill-health, following a fall in which she had fractured her hip, thereby rendering her unfit to travel. The attached medical report referred, in addition, to Mrs Dadourian suffering from severe depression and needing continuing, psychiatric supervision. Mr Dadourian asked for the hearing to be adjourned until the New Year, by which time one of them “should be able to reach London or, more hopefully, there will be a new legal representative appointed on our behalf.”

There was no information in the medical evidence supplied as to a date when either Defendant would be fit enough to travel and to attend court personally in the future. Further, I note that the email of 5 November included the following observation by Mr Dadourian:

“If David Wyld had done a better job and obtained relief from freezing orders to enable us to pay the proper costs of the action and to maintain ourselves we would not be in our present dire condition.”

In view of the history of this litigation, and in particular the judgment of Mann J. in February 2006, I consider that that is an unattractive observation to make to this Court.

Master Roberts forwarded this letter to the Claimants, who opposed the request for a further adjournment. In the circumstances Master Roberts took the following steps, with the results that he referred to at paragraph 6 of his judgment:

“I then emailed the Defendants and said that, in the light of the fact that the Claimant did not agree to an adjournment, I was unable to grant an adjournment on the papers. The Defendants would have to attend or arrange representation for an oral hearing prior to the hearing on 23 November 2010, or the application would be dealt with at the hearing on 23 November 2010. The Defendants have not issued a formal application for an adjournment or requested a hearing to consider an adjournment prior to 23 November 2010, although I have received a letter from the first Defendant on behalf of both Defendants seeking an adjournment of the hearing until a date in the New Year. He says,

‘We are seeking new solicitors and hope to have a firm engaged before the end of the year. In case this matter is dealt with in our absence and our request for an adjournment is refused, we have lodged our skeleton argument.’”

The Master noted that this was a “substantial skeleton argument”. It was neither signed nor dated, but he described it as a document which “clearly has either been written by a lawyer or has had a very substantial legal input.” Having read it, I entirely agree with the Master’s observations.

In considering the Defendants’ request for a further adjournment, Master Roberts correctly directed himself to his general power to adjourn in CPR 3.1(2)(b) and to the need to have regard to the overriding objective, to deal with cases justly, and to the relevant provisions of CPR 1.1(a) to (e).

His reasoning, in deciding to refuse the request, is set out succinctly at paragraph 10 as follows:

“I bear in mind the following matters. Firstly, this is the second application on behalf of the Defendants for an adjournment. Secondly, there is no medical evidence before the Court that within any set period of time the First Defendant’s health will have improved to an extent that he can travel to court and attend a hearing. Further, there is no medical evidence that the first Defendant cannot now travel to court by reason of ill-health. I have noted the medical evidence that the Second Defendant suffers from severe depression and needs continuous psychiatric supervision. There is no medical evidence that within the foreseeable future she will be able to attend Court. There is no evidence before me as to why the Defendants have not arranged legal representation for this hearing. The proceedings were issued on 26 March 2010. The Defendants have known about today’s hearing since the adjournment of the hearing on 12 July 2010. I accept Mr Ferris’s submission that the application for summary judgment does not require the presence of either of the Defendants, particularly bearing in mind that they have filed and served two detailed witness statements and a detailed skeleton argument.”

In all the circumstances he concluded that there were no grounds for an adjournment; that the request was a delaying tactic; and that it would not be just to order an adjournment.

After referring to the relevant background and to the evidence before him Master Roberts considered in detail the terms of the Claimants’ retainer with the Defendants, and the basis of the fees sought, for each counsel, in the fee notes attached to the outstanding bills.

He addressed the issues in the following way. Firstly, he considered whether the two bills for outstanding fees were final, statutory bills within the meaning of section 70 Solicitors Act 1974. He concluded, after directing himself to the statutory provisions and relevant case law, that they were. His reasons, essentially, were these. First, the retainer stated in terms that the Defendants could tax the bill at the Law Society and they were expressly aware of that. Second, all the bills were headed “For professional services”. They all began with the words “To our professional charges”, and not with the words “Interim bill” or “On account”. Third, all the bills were for a discrete period of time and for discrete pieces of work, which were clearly identified. Finally, all the bills delivered previously to the Defendants had been paid without demur, until the final two bills.

Secondly, Master Roberts considered whether he should grant the Defendants’ cross-application and order a detailed assessment of all the Claimants’ bills, including those that had already been paid, and therefore whether he should either refuse summary judgment, or stay execution pending the detailed assessment.

After referring to relevant authorities he concluded that the Defendants had provided no reasons whatsoever to show why his residual discretion, at common law, to order a detailed assessment should be exercised in the Defendants’ favour. The earlier bills were all paid without demur. Prior to the issue of these proceedings the Defendants had made no criticisms of the professional conduct of the Claimants or of counsel, or of the fees charged. On the contrary, after the decisions of Mann J., and then Warren J. in the trial, the Defendants continued to instruct the Claimants and the same counsel in relation to the proceedings before the Court of Appeal and then the petition to the House of Lords.

He considered the “scattergun” allegations of negligence and rejected them as either wholly unparticularised (for example the allegation that counsel had been lazy and incompetent), or “quite hopeless” (in relation to the Claimants’ alleged failure to renew the application to vary the freezing order). There is no need to refer to these allegations in more detail since Mr Edwards does not now advance them in support of the present appeal or application. Suffice it to say that Master Roberts found them all to be wholly without merit.

He therefore dismissed the Defendants’ cross-application and found that they had no reasonable prospect of successfully defending the claim, so that he granted the Claimants’ application for summary judgment.

Mr Edwards raises essentially two grounds of appeal. First, he submits that Master Roberts was wrong to refuse the Defendants’ request for an adjournment. Given their age, the medical evidence as to their ill health and inability to travel, and their stated attempts to find alternative legal representation, he submits that it was not open to the Master to refuse their request. He submits that, if the matter had been adjourned, their legal representative would have been able to place before Master Roberts, at the adjourned hearing, those matters which are now being advanced by him in support of their appeal.

Secondly, Mr Edwards submits that the Master was wrong to grant the Claimants’ application for summary judgment and to dismiss the Defendants’ cross-application for detailed assessment of all the Claimants’ costs.

In relation to the order for summary judgment, he submits that Master Roberts was wrong because the Defendants have a real prospect of successfully defending this claim on the following two grounds, only the first of which was raised before Master Roberts, although the material relevant to the second ground was before him.

The first ground of appeal (the refusal to adjourn) and the first, “interim or final bill” point in the second ground are, at least arguably, covered in the present grounds of appeal. The second, unenforceable conditional fee point is not, although it does arise for consideration on the application now made by the Claimants, out of time, to set aside the Master’s orders. All the evidence relating to this point was, however, before Master Roberts and I have heard full argument upon it. I therefore grant permission for the grounds of appeal to be amended so as to include both this ground and the other grounds now advanced, so far as amendment is necessary.

In relation to the late application to set aside Master Roberts’ orders Mr Edwards relies essentially on the same material, namely the allegedly valid reasons for the Defendants’ non-attendance at the hearing and the two points now advanced as amounting to good grounds for resisting the claim. For these reasons, I am asked to set the orders aside and to give appropriate consequential directions.

In response Mr Ferris, for the Claimants, submits in summary as follows:

Whilst different procedural issues arise in respect of the appeal and the application to set aside, it is accepted that my decision on the substantive issues will effectively determine the outcome of each. I shall in the circumstances extend time and consider the application along with the renewed application for permission to appeal.

The Status of the Bills

I have considered the contemporaneous documentation with some care. I begin with the Claimants’ letter of retainer, dated 12 January 2006. This was a lengthy and detailed letter, signed by both parties, and the relevant passages are these:

“3.

Instructions

…

The instructions are, initially with the aid of junior counsel, to prepare and make an application in the Chancery Division Claim number HC04C00366 to release property currently subject to a freezing order of the English Court situate in France, in order to fund the conduct of the defence for you as the third and fourth defendants in this matter. Provided that we are successful in such an application it is intended that I should take over the conduct of the defence for you but I emphasise that until funding is in place either pursuant to the removal of the freezing order on the French property or otherwise, I can not undertake the further preparations for trial or other applications to the court. Since the trial is scheduled to commence on 27^th February and it is extremely unlikely in the current procedural climate that we would have any chance of adjourning the matter, it will be essential that I receive speedy instruction on numerous matters that I am likely to raise with you. You agree that for purposes of liaising with you both in relation to this preliminary proposed application to release the French property from the freezing order and more generally in relation to preparations for trial if that application is successful, I should liaise with Paul Simms. I understand that you are aware that there are certain areas on the facts and pleadings where a conflict of evidence might arise with Paul Simms but that I should nonetheless discuss your case fully with Paul Simms and obtain every assistance that he is prepared to make available.

…

6.

Expenses and disbursements

In appointing me to act on your behalf, you are also authorising me, unless you instruct me to the contrary, to incur such expenses and disbursements as I consider necessary which you will be required to reimburse to me. I will consult you before incurring any significant expenses or disbursements.

Examples of expenses and disbursements which I may have to pay on your behalf include court and commissioner’s fees, fees of counsel and other experts, search and registration fees, stamp duty and special bank transaction costs. I will not mark up such disbursements when I recharge them to you except as specified below.

From time to time as I require or consider appropriate I may engage the services of external solicitors or junior counsel (to do work normally carried out by solicitors) or costs draftsmen in which case I will charge a fair and reasonable rate for their services as though they were employees of partners in the firm which may include a mark-up on the fees charged by them to me. …

7.

Accounts

I will submit invoices to you at regular monthly intervals or at appropriate stages in the conduct of the matter, whichever is the sooner. I am willing to discuss with you the most appropriate accounting procedures for any particular matter. In view of the proximity of trial, as soon as the application to vary the freezing order is made and achieved, I would draw down £500,000 from the funds which will be provided to me on account to cover all of counsel's fees for the trial since I will have to pay the fees in tranches together with my firm's fees and disbursements. I must know that I have the funds at my disposal for this purpose. In the event of counsel's fees and our costs and disbursements not adding up to £500,000, then I will refund the balance after the termination of the Action. When I draw down the £500,000, I will refund to Citilegal Consultants Limited the amount that they advance to me to start my preparations and make the application for the mortgage on the French Property to the court. These figures are the best estimate that I can currently make of the cost of trial (not including any subsequent issues) and they are based on an assumption that the trial will commence on 27th February and last for 6 weeks. The estimates for counsels' fees included in the above figures are on that basis.

Unless indicated expressly to the contrary, bills will take the form of final account for all work done during the relevant period, except as specified below. All bills are payable in full and in sterling, without any deduction for bank or other charges, or by way of set-off or counterclaim or otherwise, within thirty-days.

Disbursements will sometimes be included in a bill relating to a period later than that in which the disbursements were incurred, reflecting the fact that sometimes invoices for disbursements are not delivered to me in a timely manner.

Where an interim bill is delivered it will not necessarily be a final bill for the work done during that period. In such a case the bill will be marked "Interim bill".

If you have any query about your bill, you should contact me straight away.

Article 4 of the Solicitors' (Non-Contentious Business) Remuneration Order 1994 entitles you to require me, within one month of the receipt of a fee note, to obtain a remuneration certificate from the Law Society in respect of non-contentious work (in other words, where there are no Court proceedings), stating that in their opinion the sum charged is fair and reasonable. In respect of all matters, you may be entitled to have my charges reviewed by the Court under the relevant provisions of the Solicitors Act 1974. Details of your rights to a review and/or remuneration certificate will be supplied on request. I reserve the right to request payments in advance on account of fees and disbursements.”

Later on, in paragraph 11 of this letter, dealing with general matters, the Claimants said the following:

“• If you lose an action, you will be liable to pay my fees and disbursements in accordance with these terms of retainer. In addition, the court is also still likely to exercise its discretion to order you to pay a proportion of your opponent's costs.”

In my view, these passages, and in particular paragraph 7, provide clear and unambiguous statements both as to the nature of the work to be carried out and as to the nature of the bills which would be delivered by the Claimants. Further this letter was signed, to indicate agreement with the terms of retainer, by clients who, as the history shows, were by no means strangers to litigation or to the arrangements for payment of fees incurred.

The two bills which form the subject matter of the claim are both headed “To our Professional Charges” and dated 18 December 2009. Each bill clearly identifies specific periods of time, 12 November 2008 to 15 January 2009 (invoice number 357) and 16 January to 18 December 2009 (invoice number 355). Each bill also specifies the fees due for the particular work done during each period.

As Master Roberts found, these bills are concerned almost exclusively with disbursements, and in particular with the fees of the two counsel instructed, Mr Cakebread and Ms Levy. It is not in dispute that the detailed fee notes of both counsel were attached to each bill.

The fees sought on behalf of Mr Cakebread are £152,700.00 in total and are compiled as follows. His first fee note was for £130,00.00, 30% of which is attributable to the strike out application, which the Defendants successfully resisted, and 70% of which is attributable to the substantive hearing in the Court of Appeal. Master Roberts found that Mr Cakebread agreed to reduce the Court of Appeal fees by 50% and that 50% of the 70% is £45,000.00, so that there is a total owed to him on the first fee note of £84,000.00. There is then a second fee note in the sum of £68,700.00, representing the work done in connection with the petition to the House of Lords. The total fees are therefore £152,700.00.

The fees sought on behalf of Ms Levy are £110,900.00 in total, and there were also two fee notes for Ms Levy. The first fee note is for £103,750.00. That was apportioned by Ms Levy in a note, which was accepted on the party and party taxation, as to 40% of the £103,750.00 being attributable to the strike out application (namely £41,500.00); and the remaining 60% as attributable to the substantive hearing in the Court of Appeal. 60% of £103,750.00 is £62,250.00. Master Roberts found that, as in the case of Mr Cakebread, Ms Levy also agreed to accept 50% of this fee, namely £31,125.00. The total fees in her case, therefore, come to £72,625.00. Ms Levy was paid £30,000.00 in January 2009, leaving a balance of £42,625.00. Her second fee note is for £68,275.00 so that the total fees due to her are £110,900.00. The fees of both counsel taken together come to £263,600.00. In the Action the Claimants claim a total of £265,420.28, showing that the balance of less than £1,800.00 constitutes the Claimants’ profit costs.

It seems clear to me that, in relation to each counsel, the fees claimed in the first bill relate entirely to the work done up to and including the end of the proceedings in the Court of Appeal. There is then a break, before the fees claimed in the second bill for work done by both counsel in relation to the petition to the House of Lords. The bills, therefore, clearly relate to and identify discrete periods of time and discrete categories of work. In general, I agree with Mr Ferris that the overall sums charged by the Claimants compare very favourably with the fees incurred by DGI, assessed on a party and party basis, for which the Defendants are also liable.

Master Roberts was taken to the relevant statutory provisions and case law.

Section 69 of the Solicitors Act 1974 provides, so far as is relevant,

“69Action to recover solicitor's costs

(1)

Subject to the provisions of this Act, no action shall be brought to recover any costs due to a solicitor before the expiration of one month from the date on which a bill of those costs is delivered in accordance with the requirements mentioned in subsection (2); but if there is probable cause for believing that the party chargeable with the costs--

(a)

is about to quit England and Wales, to become bankrupt or to compound with his creditors, or

(b)

is about to do any other act which would tend to prevent or delay the solicitor obtaining payment,

the High Court may, notwithstanding that one month has not expired from the delivery of the bill, order that the solicitor be at liberty to commence an action to recover his costs and may order that those costs be [assessed].

(2)

The requirements referred to in subsection (1) are that the bill must be--

(a)

signed in accordance with subsection (2A), and

(b)

delivered in accordance with subsection (2C).

…

70 Assessment on application of party chargeable or solicitor

(1)

Where before the expiration of one month from the delivery of a solicitor's bill an application is made by the party chargeable with the bill, the High Court shall, without requiring any sum to be paid into court, order that the bill be assessed and that no action be commenced on the bill until the assessment is completed.

(2)

Where no such application is made before the expiration of the period mentioned in subsection (1), then, on an application being made by the solicitor or, subject to subsections (3) and (4), by the party chargeable with the bill, the court may on such terms, if any, as it thinks fit (not being terms as to the costs of the assessment), order-

(a)

that the bill be assessed; and

(b)

that no action be commenced on the bill, and that any action already commenced be stayed, until the assessment is completed.

(3)

Where an application under subsection (2) is made by the party chargeable with the bill-

(a)

after the expiration of 12 months from the delivery of the bill, or

(b)

after a judgment has been obtained for the recovery of the costs covered by the bill, or

(c)

after the bill has been paid, but before the expiration of 12 months from the payment of the bill,

no order shall be made except in special circumstances and, if an order is made, it may contain such terms as regards the costs of the assessment as the court may think fit.

(4)

The power to order assessment conferred by subsection (2) shall not be exercisable on an application made by the party chargeable with the bill after the expiration of 12 months from the payment of the bill.”

As Mr Ferris points out, there is no dispute that each of these bills was signed and delivered in accordance with section 69(2A) and (2C). The dispute is as to whether these bills were final “statute” bills, or merely interim on account bills.

There is some scope for confusion arising from the terminology. In Abedi v. Penningtons (unreported, CA 23 March 2000, number 1999/1169/A2), Simon Brown L.J. cited the following passage in Cordery on Solicitors (ninth edition 1999) and it is helpful to refer to it here;

“‘There are two kinds of interim bills, and the difference between them is crucial.

1.

INTERIM STATUTE BILLS

(a)

Self contained final bills

These are called statute bills because they comply with all the requirements of the Solicitors Act 1974 and result in all the consequences which flow from such compliance - the solicitor can enforce payment by suing the client, the client can obtain an order for taxation and the various time limits relating to the client's rights to tax run from the date of their delivery. Although they are interim bills they are also final bills in respect of the work covered by them. There can be no subsequent adjustment in the light of the outcome of the business. They are complete self-contained bills of costs to date. Interim statute bills are rare and during the currency of the retainer can arise in only two ways: by natural break or agreement.

(b)

Natural Break

There is authority for the rendering of an interim bill at a natural break in protracted litigation. There is, however, little authority in identifying what is a natural break. In Chamberlain v Boodle & King [1982] 1 WLR 1443 Lord Denning said “it is a question of fact whether there are natural breaks in the work done by a solicitor so that each portion of it can and should be treated as a separate and distinct part in itself, capable of and rightly being charged separately and taxed separately.” In that case the Court of Appeal held that there had been no natural breaks justifying treating a series of accounts rendered during litigation as final accounts and that they should accordingly be treated as one bill all of which could be taxed. The Council of the Law Society's advice is not to rely on the “natural break” principle as a ground for delivering a bill except in the clearest cases.

(c)

Agreement

“Before a solicitor is entitled to require a bill to be treated as a complete self-contained bill of costs to date, he must make it plain to the client expressly or by implication that that is his purpose of sending in that bill for that amount at that time. Then, of course, one looks to see what the client's reaction is. If the client's reaction is to pay the bill in its entirety without demur, it is not difficult to infer an agreement that the bill is to be treated as a self-contained bill of costs to date”- per Roskill LJ in Davidsons v Jones-Fenleieh (1980) 124 Sol Jo 204 (following In re Romer and Haslam [1893] 2 QB 286).

In that case the court found that each of four bills delivered was complete and final in its own right and that the time for taxing three of them had expired. ...

2.

INTERIM BILLS ON ACCOUNT

(a)

Request for payment on account.

... It is vital to differentiate between a request for payment under s.65(2), which is usually known as a “bill on account”, and an interim statute bill, particularly as both are often described as “interim” bills.

(b)

Not enforceable by action.

A bill on account is really nothing more than a request for payment on account. Not being a statute bill it cannot be sued upon by the solicitor, the client cannot apply for it to be taxed and, of course, the time limits for applying for a taxation do not run. …’”

In the earlier case of Davidsons (A Firm) v. Jones-Fenleigh (6 March 1980, CA), the issue before the Court was whether, in relation to litigation, the four bills delivered should be regarded as four individual bills or one single bill. Reviewing the authorities Roskill LJ said this:

“… by the time one reaches In Re Romer & Haslam, it is plain that the Court of Appeal, Lord Esher, Master of the Rolls, Lord Justice Bowen and Lord Justice Kay, recognised that in certain circumstances a solicitor might, in the course of a long drawn out common law action or arbitration, properly send in bills from time to time to his client, bills made out to a certain date or up to a certain point which is described in the judgments as a ‘natural break’, intending them to be paid up to that date or point subject of course to the client's statutory right, as it then was, to have that bill taxed either after delivery or, in certain circumstances, even after payment.

But as the judgments in In Re Romer & Haslam show, for this entitlement to remuneration to arise a very clear intention had to be manifested by the solicitor when he sent in his bill to the client that it was intended to be a complete bill to date, which the solicitor wanted to have finally settled and that the solicitor was not, in sending in that bill, merely either telling his client how matters were going on or only seeking a payment on account towards whatever the final bill might be.”

I pause to observe that, in the present case, Master Roberts had the terms of the retainer letter, in addition to the bills themselves, to assist him in arriving at a decision as to whether the bills submitted were interim or final bills.

Later on Roskill LJ said this:

“There is now no doubt, I venture to think, what the law is. In a case such as the present, a solicitor is entitled to select a point of time which he regards an appropriate point of time at which to send in a bill. But before he is entitled to require that bill to be treated as a complete self-contained bill of costs to date, he must make it plain to the client either expressly or by necessary implication that that is his purpose of sending in that bill for that amount at that time. Then of course one looks to see what the client's reaction is. If the client's reaction is to pay the bill in its entirety without demur it is not difficult to infer an agreement that that bill is to be treated as a complete self-contained bill of costs to date.”

Applying these principles to the facts of the case, the Court of Appeal held that there were four separate bills, saying as follows in relation to the meaning of the phrase “natural break”,

“Then it was said that those bills do not show on their face any ‘natural break’, to use the phrase that is used in the judgments in In Re Romer & Haslam. If by ‘natural break’ it is meant a ‘natural break’ which can be identified as a particular point in the litigation that is so. But I do not see why there should not be a ‘natural break’ ascertained by reference to one or more particular points of time. In the ultimate analysis it must always depend, as Lord Justice Bowen said, upon the right deduction to be drawn from the particular facts of each case. Neither Master Jacob nor Mr Justice McNeill had the benefit of being referred to ln Re Romer & Haslam. If they had it may well be that each would have reached the same conclusion as I have done.

To my mind, and applying that decision to the facts of the present case, there are here not one but four bills. I therefore approach the remaining question on that basis.”

The evidence before Master Roberts in the present case was, in my view, clear. In addition to the express terms of the retainer, he had the bills themselves, which specified discrete periods of time and discrete categories of work, with a “natural break” between the work up to and including the conclusion of proceedings in the Court of Appeal and the work then undertaken subsequently, in preparation for and presentation of the petition to the House of Lords.

Mr Ferris relies in addition on the earlier pattern of bills, to which Master Roberts also had regard in his judgment. He is right to do so. It is clear that all the bills previously submitted by the Claimants, totalling over £1 million, were headed in the same way; and all of them had been paid by the Defendants without demur. The Defendants were clearly outside the 12-month period provided for in section 70(4) for seeking an assessment. Whilst the Court retains a residual discretion to order a taxation, Master Roberts found on the evidence that these Defendants had provided no reasons why that discretion should be exercised in their favour. He, therefore, declined to do so and dismissed their application.

I am not persuaded that Mr Wyld’s reference to sending “regular interim bills” in the paragraphs of his witness statements, referred to by Mr Edwards, demonstrates that the bills actually delivered were, in fact, merely interim on account bills. It is my view more helpful to examine the contemporaneous documentation itself, than a shorthand description of it in witness statements prepared subsequently. There is nothing of substance in these statements upon which Mr Edwards can draw as providing support for his submissions.

The contemporaneous documentation is, in my judgment, clear and Mr Edwards does not suggest that there was any further, relevant documentation, which was not before Master Roberts.

In relation to the application for summary judgment on the two bills which are the subject of the claim I can identify no basis upon which Master Roberts could be said to have erred in concluding, pursuant to CPR 24 and for the reasons he gave, that there was no real prospect of successfully defending the claim on the basis that these bills were merely requests for payment on account. I therefore refuse permission to appeal on this ground.

Nor do I consider that there is any merit in the argument that Master Roberts was wrong to dismiss the Defendants’ application for detailed assessment of all the Claimants’ bills going back to 2006, which would include the two bills which are the subject of the present claim. For the reasons set out above, Master Roberts’ decision and the reasoning which underpins it is, in my judgment, unimpeachable. I refuse permission to appeal against that decision in addition.

Was there an unenforceable conditional fee agreement?

In support of his submissions on this point Mr Edwards relied heavily on paragraph 13 of Mr Wyld’s second witness statement and the following passages in relation to counsel’s fees.

“In broad terms since the Freezing Orders remained in force on the assets of the Defendants … it was necessary to discuss and agree the arrangement for payment of fees in some detail with the Defendants. These discussions took place partly on the telephone between the Defendants at their flat in Paris at Rue de la Tremoille and myself, and partly between the Defendants in Paris and Mr Cakebread, Miss Levy and myself together in their chambers. We had detailed discussions regarding the brief fees and refreshers for Mr Cakebread and Miss Levy and we agreed on specific sums which would be reduced by 50% in the event that we were not successful in either the strike out applications against us or the appeal we were mounting.”

So far as is relevant, section 58 Courts and Legal Services Act 1990 provides as follows:

“58 Conditional fee agreements

(1)

A conditional fee agreement which satisfies all of the conditions applicable to it by virtue of this section shall not be unenforceable by reason only of its being a conditional fee agreement; but (subject to subsection (5)) any other conditional fee agreement shall be unenforceable.

(2)

For the purposes of this section and section 58A—

(a)

a conditional fee agreement is an agreement with a person providing advocacy or litigation services which provides for his fees and expenses, or any part of them, to be payable only in specified circumstances …

(3)

The following conditions are applicable to every conditional fee agreement-

(a)

it must be in writing;”

Mr Edwards submits that it is at the very least arguable that the agreements evidenced in Mr Wyld’s witness statement were conditional fee agreements within section 58(2)(a). Further, he submits that they were plainly only oral agreements and were therefore unenforceable, because they were never committed to writing as required by section 58(3)(a). Since both counsel therefore entered into unenforceable, conditional fee agreements with the Claimants, the Defendants cannot now be required to pay these sums to the Claimants.

Once again, I have carefully examined the contemporaneous documentation as to the arrangements with counsel, in considering this issue.

In a fax dated 18 November 2008, and therefore sent shortly before the hearing in the Court of Appeal, Mr Wyld wrote to the Defendants setting out “the options for going forward” in terms of the work to be done by himself and both counsel, and of the funding for the appeal. He referred to having been served with “a whole mass of material” from the solicitors for DGI and to now “being faced with a serious strike out application”. The following passages are of particular importance:

“In any event in order to get through the appeal and strike out applications are best estimate is that it will take Stuart Cakebread 15 days to prepare, including keeping say 1 or 2 days available to deal with further material we might receive from Paul Simms and 8 days at the hearing i.e. 23 days at £2,750 (I have 1 think agreed with his clerk to reduce his daily rate to this rather than the £3,000 that he requested) therefore:

£63,250 payable to Stuart

Juliette Levy is expected to have to spend 18 days preparation and another 8 days at the appeal i.e. a total of 26 days. I am confident that 1 will be able to negotiate fees of not more than £2,000 a day but equally she will not want any less than that for this commitment. We therefore have:

£52,000 payable to Juliette

It would be impractical not to have transcripts which the court and the claimants are proposing to organise and we have to allow £1,000 per day for this in the Court of Appeal i.e.:

£8,000 for transcripts

I have given consideration to the minimum fee that I can reasonably charge. I will have not less than 13 days preparation and 1 would be prepared in all the circumstances to cap my fee at £2,000 per day. i.e.:

£26,000 payable to David Wyld

We are therefore looking at a reasonable estimate which I hope would cater for having to deal with additional material from Paul Simms:

Total of £149,250.

As I have repeatedly told you; preparing for what will be a very major hearing in the Court of Appeal is not significantly different from preparing for the trial although the fees are much less in part because we do not have a QC. Stuart considers, and I agree with him, that it is not practicable when the other side now have 2 Counsel for us not to have 2 Counsel to deal with all the points that arise.

I have to ask therefore whether you can put in hand arrangements for payment on account for £148,250 as soon as possible. We will be very seriously compromised if we are not put in funds at once to proceed.

Of course it may be that for example the strike out application would collapse after half a day or a day and it may be that the Court of Appeal will not need extensive arguments from our side but will ask the other side to respond earlier in the hearing than we currently estimate.

In events of that kind we will be likely to hold sums on account, reflecting a smaller number of days of hearing on both Counsels fees, my fees and transcripts.

Please can we discuss this as soon as possible since I cannot adopt a 'do nothing' approach. In the absence of being funded in full and very quickly I will have to go off the record and inform Counsel that 1 am unable to retain them for the conjoined hearings and, more immediately, the preparations for them.”

Subsequently, in a further fax sent on 12 December, the fourth day of the hearing before the Court of Appeal, Mr Wyld said as follows:

“Dear Jack and Helga,

I am sending you a yet further copy of the account of 2^nd December.

This is the best estimate that I could produce, and you asked me to let you have it in the form of a bill rather than an estimate, to take us up to the end of the hearings before the Court of Appeal.

You correctly say that I have £113,000 on account, out of which I have already defrayed a proportion of the fees set out on the attached account. The funds that I have taken have included the minimum requirements of counsel to take them up until approximately 3 weeks ago and that has been £30,000 to Juliette Levy and £8,400 to Stuart Cakebread, £11,400 of my fees and some of the copying charges shown on the bill as £4,640.07 although I am receiving further bills.

I believe that I will be able to reduce the total shown on this account by at least some of the fees for the transcripts of £8,000 and I will also arrange by absenting myself from the court to be able to reduce my fees.

The total amount of the reduction below the approximately £201,000 indicated may therefore be as much as sum £13,000.

The whole point of the agreement that I made with Stuart Cakebread and Juliette Levy on your behalf was to avoid the `brief fee' which barristers normally seek to charge and to relate their bills only to the time actually being spent on preparation and in court. This is the point that I just mentioned to you - that when the courts as they have, you will recall, done in every single case on this matter for you adjourned for a day or taking an extra or two's reading time. Counsel is invariably working flat out and that is all part of the overall fee which I have negotiated at somewhat less than their usual [amounts].

I currently (on a per diem working basis) am significantly in deficit and I will be in still more deficit on each succeeding day over the next 5 or 6 days with counsel working either preparing arguments on other points arising in the appeal or in court.

I appreciate that you are aware that I am completely `off side' regarding my professional rules and regulations both in owing counsel far more than I hold and also in agreeing at your specific request not to charge you for the full time spent during the hearing, either by not being present or by notionally not being present.

In return for this I had understood you clearly to indicate that you would be arranging for me to be forwarded the £30,000 received from Jordan, that we would receive some kind of undertaking from a funder regarding that balance of the fees and you would also write letters which we drafted for you to the directors/managers of Brinton.

At present I am in a deficit position but physically hold funds of £ 59,044.75.”

Nowhere, in either of these detailed communications, does Mr Wyld say anything to indicate that counsel had entered into any conditional or contingency arrangement in relation to their fees. The Claimants and both counsel are highly experienced practitioners. Mr Edwards does not suggest that either counsel entered into a conditional fee agreement with the Claimants but deliberately concealed that fact from the Defendants. Had such an agreement, in fact, been entered into I agree with Mr Ferris that you would expect to see this referred to in the detailed correspondence about fees passing between the Defendants and their solicitors.

After the hearing in the Court of Appeal, but before their judgment was delivered, the Claimants sent an email to the Defendants dated 15 January 2009, stating as follows:

“Dear Jack and Helga

Re: Fee Notes

You will recall that you asked me to provide a 'bill not an estimate' at the very beginning of December shortly before the appeal hearing.

The result was that I let you have the bill of 2 December 2008. Since this was a bill I had to make certain assumptions even in charging disbursements (which in total are far more than my own firm's fees as usual). Further discussions have taken place as result of which I now send you a credit note for the amount of that account (£201,255.07) but I enclose herewith another account. The reason why this account, the real one reflecting what has actually happened, is much more is that at the time of preparation of 2 December 2008 on account I was still in negotiation with counsel with whom I have now agreed to significantly higher preparation and brief fees than were incorporated in that earlier account.

I have in fact reduced my own account, in particular I have reduced £20,000 to £15,750 to reflect the reduced amount of work that I was able to do and I have eliminated the fee for transcripts which we have so far at least been able to avoid incurring on your behalf.

The figures in respect of counsel are however now for Stuart Cakebread £130,000 and for Juliette Levy £103,750.

I have as shown on the account paid Stuart £8,400 and Juliette Levy £30,000.

I am at the moment holding the sum of £59,044.75. With this I am disbursing £30,000 to Juliette (reducing the amount that I owe her to £73,750) and £7,500 each to Stuart Cakebread and to my firm on account of the outstanding fees (leaving £122,500 owing to Stuart Cakebread) and £8,250 owing to my firm.

In summary therefore I am due to receive, as I should have done as a condition precedent of acting on your behalf in the appeal a further sum £190,455.25.

It is matter of extreme concern that we did agree to go ahead without full payment in advance but that was on the basis that:-

a)

The £30,000 en route from Jordan would be paid into our Client Account from Mr Adom Tenjoukian.

b)

We got some sort of undertaking from a funder that in due course the fees would be paid.

c)

That you would write a letter in accordance with a draft that I sent to you to request the director /managers of the 'Corporate Defendants' as they have come to be called to release funds as and when they are able too to pay for these fees.

I do know that you have had further communication from Nicholas Frimond regarding further funding being necessary for the excellent work that he is undertaking.

I should also mention, for completeness, making the most favourable possible assumptions about what will happen in the future, i.e. we win on a significant point in the appeal and not just in defeating the strike out application, we will need very significant funding for going forward.

Not only will I have to pay fees of counsel and my own firm's fees before I can for example instruct counsel to turn up to argue points in the court of appeal, but also I will be busy enforcing any costs order and indeed carrying out detailed assessments of the various groups of costs which we ought to receive. All this will require funding. Stuart has estimated that this will not be less than £100,000. I think that should be sufficient including fees to cost assessors and experts and I will not need all that immediately.

I thought I should put all this in writing to you.

Since very often I receive a communication from you which seems to have ignored past communications I will try to put all this in summary on one piece of paper in addition to this letter. It would be a shame if we succeed at this point but are not able to pursue matters in the necessary way on your behalf to achieve anything!”

Once again, there is nothing there to indicate the existence of any conditional fee agreement with counsel. Nor does the bill, dated 15 January 2009 (invoice number 320), contain anything to suggest such an arrangement or agreement. Nor is there any document I have seen showing the Defendants responding to these communications by reference to the existence of such an agreement and to any understanding on their part that they would be liable only for 50% of counsels’ fees if the appeal was lost.

After the Court of Appeal handed down their judgment in March 2009, there was no further correspondence from the Claimants concerning fees until they wrote once again to the Defendants, some nine months later on 18 December 2009, resending a copy of the account from January showing the amounts due to both counsel in respect of the work they had done.

Significantly the third paragraph of this letter reads as follows:

“…In relation to the earlier account however Counsel are prepared to waive half their fees relating to the appeal. In the case of Stuart Cakebread this was 70% of his fees and delivered in respect of the whole (i.e. he spent 30% of his time and effort on the strike out application) and in the case of Juliette it is 60% (i.e. she spent 40% of her time on the strike out application).”

This is followed by the particularised figures that are now claimed.

This is the first reference to any reduction in counsel’s fees and it is expressed only in terms of a waiver or discount, and not on the basis of there being any contingency agreement.

Against this background, I do not regard the paragraph in Mr Wyld’s witness statement, now being relied upon, as capable of bearing the weight which Mr Edwards seeks to place upon it at this late stage. At the time Mr Wyld wrote that statement there was no suggestion being made, and nor was one anticipated, that counsel were acting pursuant to an unenforceable conditional fee agreement. The focus of that witness statement was Mr Wyld’s attempt to demonstrate the reasonableness of the fees incurred. The suggestion that in paragraph 13 he was describing a conditional fee agreement, as now suggested by Mr Edwards, seems to me to be entirely contradicted by the terms of the relevant, contemporaneous documentation.

With some justification, in my view, Mr Ferris describes this as a late and purely technical point, and as one which is without merit. All the contemporaneous documentation, and Mr Edwards does not suggest that there is any other relevant documentation which was not before the Master, shows clearly that, throughout 2009 and until counsel made the concession first referred to in December, the Defendants’ obligation was to pay all counsels’ fees and that they understood that to be their obligation. In the circumstances there is no real prospect of success for this point on an appeal and I therefore refuse permission to appeal on this point in addition.

Nor am I persuaded that, on all the evidence, this point can properly found the application now made to set aside Master Roberts’s decision to uphold the application for summary judgment and to dismiss the Defendants’ cross application.

The Refusal of the Adjournment

I turn finally to Master Roberts’ decision to refuse the Defendants’ request for a further adjournment.

As Mr Edwards acknowledges, this was a matter for his discretion.

Master Roberts plainly had regard to the age, location and evidence of ill-health of both these Defendants. However, he also had regard to the general background to this litigation; to the fact that there had already been one adjournment of the hearing and that this hearing had been fixed since July 2010; and to the fact that there was no indication in the evidence before him as to when, if he did adjourn the hearing, either Defendant would be fit enough to attend a hearing fixed on a future date.

Master Roberts set out the history of the communications passing between the Court and the Defendants. They had not asked the Claimant to agree to any adjournment. Nor had they informed the Claimants of the basis for their request. Following the Court’s own communications with the Defendants Master Roberts noted that they had, in fact, made no formal application to adjourn and had not sought a hearing, in advance of 23 November, in order that this issue could be properly considered.

With regard to the Defendants’ stated attempts to arrange for legal representation Master Roberts noted that, although they were on the record as acting in person, documents submitted by the Defendants included witness statements and a substantial skeleton argument, which had clearly had “very substantial legal input”. A firm of solicitors called Barnes and Partners went on the record as acting for the Defendants on 6 September 2010, but went off the record again on 2 November 2010. In any event, these solicitors were not on the record when the claim was acknowledged, or when the Defendants’ application for assessment of all the Claimants’ costs was made, or when Mr Dadourian’s first witness statement was presented to the Court. Given that the hearing had been fixed as long ago as July 2010, Master Roberts considered that there was no evidence before him as to why the Defendants had not been able to arrange legal representation for the hearing on 23 November. He also considered that there was, in the circumstances, no necessity for either Defendant to attend the hearing personally since they had submitted all the detailed documents and a substantial skeleton argument, which provided him with all the material he needed. Mr Edwards did not suggest at this hearing that there were further documents or further evidence, which the Defendants should have filed, in order for these matters to be addressed.

It is clear from Master Roberts’ second judgment, on the substantive applications, that he took conspicuous care to address the issues and the relevant material, and to have regard to all of it in arriving at his decision. Reading his first judgment, in relation to the refusal of the request to adjourn, it is clear that he had regard to all the relevant factors. His decision, in my judgment, was one which was clearly open to him on the material before him and was in the circumstances well within the range of legitimate, discretionary decision making. There is, in my view, no real prospect of success for an appeal from his decision to refuse the Defendants’ request to adjourn this hearing and I therefore refuse permission to appeal on that ground in addition.

For all these reasons I refuse permission to appeal against the orders of Master Roberts dated 23 November 2010; and I also dismiss the application to set aside those orders. Having reached the clear conclusions I have in relation to the substantive issues, I also consider that there is no real prospect of success for an argument that Master Roberts was wrong to dismiss the Defendants’ cross application.