Edwin Coe LLP v Aidiniantz & Ors

The claimant and Part 20 defendant, Edwin Coe LLP ("Coe"), is a limited liability partnership which practises as solicitors. In this action it claimed against the first defendant, Mr. John Aidiniantz, the sum of £103,300.17 and against the second defendant, a company called Rollerteam Ltd. ("Rollerteam"), the sum of £75,907.17, in each case together with interest. Coe acted as solicitors to both Mr. Aidiniantz and Rollerteam and the sums claimed, respectively, were said to be due in respect of the provision by Coe of legal services. Some of the fees claimed against Mr. Aidiniantz were said to be due in respect of Coe acting for him in a personal capacity. However, a significant amount of the total sum claimed against him in this action – that amount which was also claimed against Rollerteam – was claimed pursuant to an indemnity which he entered into with Coe in respect of the payment to Coe of sums falling due in respect of services provided to Rollerteam. That indemnity was in writing and contained in an undated letter produced on or about 5 January 2013 by Mr. Aidiniantz and addressed to Mr. Simeon Gilchrist, a member of Coe. The letter was in these terms:-

It was accepted on behalf of Mr. Aidiniantz and Rollerteam in this action that Coe had acted for each, and, implicitly, but subject to the Part 20 Claim, that it was entitled to be paid reasonable fees for the work which it had done. However, it was contended that Mr. Aidiniantz and Rollerteam were entitled to have bills rendered by Coe assessed pursuant to the provisions of Solicitors Act 1974 s.70 or at common law. So far as presently material, Solicitors Act 1974 s.70 is in these terms:-

Neither Mr. Aidiniantz nor Rollerteam sought assessment of any of the bills forming the subject of the claims in this action within one month of delivery.

The first batch of answers on behalf of Coe to the claim for assessment of the bills was that Mr. Aidiniantz and Rollerteam had agreed to pay the amounts claimed, or were estopped from contending that they were entitled to have the bills assessed, or had waived the right to assessment. Whether any of those contentions was sound depended upon the proper construction of exchanges between the parties to which I shall come. Separately it was contended on behalf of Coe that if, in principle (because the first batch of answers failed), Mr. Aidiniantz or Rollerteam could bring himself or itself within the provisions of Solicitors Act 1974 s.70(2) or (3), the court should not, in the exercise of its discretion, order assessment of any bill. Some of the bills which it was sought to have assessed, it was common ground, were bills which had been paid, and so fell, if the answers of Coe to which I have already referred failed, within Solicitors Act 1974 s.70(3). Coe contended that it had not been demonstrated that any "special circumstances" existed in relation to those bills such as would justify the court in ordering assessment. It was also contended that Mr. Aidiniantz and Rollerteam should not, in the exercise of the court's discretion, succeed in the claim for assessment of unpaid bills, and that they were not entitled to assessment of any bills at common law.

However, the main thrust of the defence to the claims made in the action was that the amounts of the bills were extinguished by the damages to which Mr. Aidiniantz and Rollerteam were entitled by reason of the negligence of Coe in advising, or failing to advise, concerning the consequences of a freezing order which was granted without notice by Norris J in proceedings in the Chancery Division with the action number HC12E04866 ("the Main Action"). In the Main Action the claimant was a company called The Sherlock Holmes International Society Ltd. ("SHIS") and the defendants were Mr. Aidiniantz, Rollerteam, The Sherlock Holmes Museum Ltd. ("Museum Ltd.") and Sherlock Holmes Ltd. ("Holmes Ltd."). The amount of the damages claimed at the start of the trial totalled £142,674.70. Of that amount £117,674.70 represented part of the sums claimed by Coe in this action in respect of fees, specifically that part which related to an application to the court to discharge the freezing order to which I have referred, plus an element of Value Added Tax, totalling £8,812.44. The balance, £25,000, was the amount paid pursuant to an order for costs made against the unsuccessful defendants in the Main Action on the dismissal of the application to discharge the freezing order. It was accepted by Mr. William Flenley Q.C., who appeared on behalf of Mr. Aidiniantz, Rollerteam, Museum Ltd. and Holmes Ltd. at the trial, that the Value Added Tax element in the claim for £142,674.70 was recoverable by his clients, and so should not be taken into account in assessing damages, in the event that the claims of Mr. Aidiniantz, Rollerteam, Museum Ltd. and Holmes Ltd. in negligence against Coe succeeded. Thus in the event the damages claimed amounted to £133,862.26. That adjustment having been made, there was no dispute before me that the costs of the application to discharge the freezing order to which I have referred claimed by Coe amounted to £108,862.26, and that Mr. Aidiniantz and Rollerteam paid £25,000 pursuant to the order for costs which I have mentioned.

It is convenient next in this judgment to explain the background to the commencement of the Main Action and the precise nature of the allegations of negligence against Coe.

Coe acted on behalf of Mr. Aidiniantz in two actions, one of which was the Main Action. The other ("the Possession Action") was an action in which Linda Riley, who was in fact a half-sister of Mr. Aidiniantz, sought possession against Mr. Aidiniantz of the property known as and situate at [an address] ("the Mews House"). Coe acted on behalf of Rollerteam in three actions. Again one was the Main Action. The second was the Possession Action. The third was an action which had been commenced by a different firm of solicitors, WGS Solicitors ("WGS"), and of which Coe took over conduct. That action had the case number HQ12X04289. The only claimant in that action was Rollerteam and the defendants were all half-siblings of Mr. Aidiniantz, Linda Riley, her sister Jennifer Decoteau, and her brother Stephen Riley. It is convenient to refer to that action in this judgment as "the Riley Action". Coe only acted on behalf of Museum Ltd. and Holmes Ltd. in the Main Action and not in any other litigation. There was no claim on behalf of Coe against either Museum Ltd. or Holmes Ltd. in this action. Given the nature of the damages claimed as consequent upon the allegations of negligence on the part of Coe, it did not appear that, in any real sense, it was contended that either Museum Ltd. or Holmes Ltd. had suffered loss as a result of any alleged negligence of Coe. That notwithstanding, both Museum Ltd. and Holmes Ltd. were Part 20 Claimants in this action, along with Mr. Aidiniantz and Rollerteam.

In about 1990 Mr. Aidiniantz founded, at premises ("the Museum Premises") correctly known as and situate at 239, Baker Street, London NW1, but for trading purposes described as 221B, Baker Street, a museum ("the Museum") devoted to the fictional detective Sherlock Holmes. The establishment of the Museum was financed, in part, by Mr. Aidiniantz's mother, Grace Aidiniantz, who is also the mother of Linda Riley, Jennifer Decoteau and Stephen Riley. The freehold interest in the Museum Premises was vested in Rollerteam. Mr. Aidiniantz was at all times material to this action a director of Rollerteam, as well as of Museum Ltd. and Holmes Ltd. However, in order to protect Rollerteam and its assets from potential claims against Mr. Aidiniantz, in about 1994 Mr. Aidiniantz transferred his shares in Rollerteam, which was a majority shareholding, to his mother. He contended that this transfer was only of the legal interest in the shares and that he remained beneficially entitled to them. That seemed to have been disputed by his mother and his half-siblings, and it appeared that that dispute fostered other disputes and led, ultimately, to the three actions in which, as I have already noted, Coe came, in due course, to be instructed on behalf of Mr. Aidiniantz, Rollerteam, Museum Ltd. or Holmes Ltd.

In about 2004 Mr. Aidiniantz caused SHIS to be incorporated as a company limited by guarantee. The purpose of the incorporation appears to have been to take advantage of a Value Added Tax exemption in relation to the fees charged to the public for entrance to the Museum Premises. However, for this exemption to be applicable SHIS needed to be a not-for-profit company, and Mr. Aidiniantz could not be a director or have any direct or indirect financial interest in it. The original directors of SHIS were Mrs. Aidiniantz and Linda Riley. Jennifer Decoteau was subsequently appointed a director of SHIS in place of Linda Riley. Despite the formal structure of SHIS, it appeared that actually Mr. Aidiniantz was de facto in control of it.

It seems that the Museum was successful and profitable. Some of the cash takings of the business were kept in a safe, called, in the jargon of the trial, "the Reserve Safe" at the Mews House.

Disputes between Mr. Aidiniantz and his mother and half-siblings appear to have erupted in about August 2012. The first litigious step was taken by Rollerteam, at the instigation of Mr. Aidiniantz, against his half-siblings in the Riley Action. Mr. Aidiniantz instructed WGS to make, on 11 October 2012, an application without notice on behalf of Rollerteam to Openshaw J for a freezing injunction against Linda Riley. That application was successful. Openshaw J granted an injunction which included these provisions:-

What actually happened was that Linda Riley caused the freezing order to be discharged by paying the amount of £175,000 on 18 October 2012 into the client account of WGS. That was recorded by Linda Riley's solicitors, Messrs. Bromptons, in a letter dated 22 October 2012 to WGS:-

It appears that WGS did not sign a copy of the letter dated 22 October 2012 as requested, but it did reply to the letter in a letter dated 23 October 2012 in which it said, "We confirm that the Order has ceased to have effect".

If Round One had gone in favour of Mr. Aidiniantz, the commencement of Round Two was not long delayed. On 13 December 2012 application was made to Norris J without notice for a freezing order in what became the Main Action. Norris J granted an injunction. The freezing order ("the Main Freezing Order") included these provisions:-

On 17 December 2012 Mr. Aidiniantz, on his own behalf and on behalf of Rollerteam, Museum Ltd. and Holmes Ltd., consulted Coe concerning the Main Freezing Order. There were a number of e-mails on 17 and 18 December 2012 between Mr. Aidiniantz and representatives of Coe. An important exchange of e-mails took place in the early evening of 17 December 2012.

At 18.38 hours Mr. Simeon Gilchrist, a member of Coe, wrote, inter alia, concerning the fees which Coe would charge for its services. The e-mail included this paragraph:-

Mr. Aidiniantz replied to that e-mail very soon afterwards, at 18.48 hours. About fees he said, "The fee seems reasonable and on a par with the usual standards."

In an e-mail sent by Mr. Aidiniantz at 10.18 hours on 18 December 2012 to Mr. Gilchrist Mr. Aidiniantz said:-

Although that e-mail did explain that there was £535,000 in the Reserve Safe, it did not indicate to whom that money belonged. Mr. Gilchrist enquired in an e-mail sent to Mr. Aidiniantz at 3.10 p.m. on 18 December 2012. Mr. Aidiniantz replied in an e-mail sent at 16.25 hours the same day:-

It appears that Mr. Aidiniantz habitually communicated with Coe by e-mail during the period in which he and his companies instructed Coe. From e-mails which he sent to Coe on 18 December 2012 it was obvious that he was unhappy about the grant of the Main Freezing Order and had it in mind that it should be discharged. For example, in an e-mail sent at 11.30 hours Mr. Aidiniantz commented:-

Slightly later, in an e-mail sent at 11.42 hours, Mr. Aidiniantz observed that:-

In an e-mail sent at 14.34 hours Mr. Aidiniantz asserted that:-

In order to comply with the requirement in paragraph 9(1) of the Main Freezing Order Coe, on the instructions of Mr. Aidiniantz, wrote a letter dated 18 December 2012 to Smithfield Partners Ltd. ("Smithfield"), solicitors acting on behalf of SHIS in what was to become the Main Action. The letter included:-

A draft of that letter was sent to Mr. Aidiniantz as an attachment to an e-mail sent at 6.29 p.m. on 18 December 2012 by Mr. Pey Kan Su, an associate employed by Coe. The e-mail was in these terms:-

Mr. Aidiniantz responded in an e-mail sent at 18.53 hours the same day, "Revised and approved". It was the version as further revised by Mr. Aidiniantz which was sent and which included those passages which I have quoted.

As an attachment to an e-mail sent to Mr. Aidiniantz at 16.25 hours on 18 December 2012 Coe sent a letter dated 18 December 2012 giving advice concerning the Main Freezing Order. The advice included:-

Also on 18 December 2012 Coe sent letters of engagement to each of Mr. Aidiniantz, Rollerteam, Museum Ltd. and Holmes Ltd. The letters were, mutatis mutandis, in identical terms. Each included a "Record of Instruction" document. That document identified the matter in which Coe had been instructed as "The claim of The Sherlock Holmes International Society Limited ("SHISL")". Under the rubric, "Objectives, issues and steps to be taken" appeared this:-

Later in the "Record of Instruction" document were set out details of "Fee arrangements". They identified the rate of charge of the partner assigned to the matter, Mr. Gilchrist, as £390 per hour, and the rate of charge of his assistant solicitor, Mr. Su, as £270 per hour.

In an e-mail sent to Mr. Aidiniantz at 15.47 hours on 19 December 2012 Mr. Su suggested that it might be useful for Mr. Aidiniantz to make a list of anticipated expenses of his businesses which could be notified to Smithfield. Mr. Aidiniantz was not impressed by that suggestion. In an e-mail in response sent at 16.05 hours on 19 December 2012 Mr. Aidiniantz commented:-

In an e-mail sent to Mr. Su at 23.15 hours on 19 December 2012 Mr. Aidiniantz rather complicated the position which he had described concerning the £535,000 in the Reserve Safe by observing, in the course of a long e-mail in which he sought to explain how he allocated income as between Rollerteam, Museum Ltd., Holmes Ltd. and SHIS:-

In advance of the hearing on the return date fixed by the Main Freezing Order, 21 December 2012, a conference took place between Mr. Aidiniantz, his partner, Andrea von Ehrenstein, Mr. Gilchrist, Mr. Su and counsel, Miss Marcia Shekerdemian, on 20 December 2012. It was a long meeting. An attendance note made by Mr. Gilchrist of the conference immediately afterwards noted that it had lasted from 11.30 hours until 14.45 hours. An attendance note ("the First Su Note") made on 4 January 2013 by Mr. Su based on his manuscript notes of the conference recorded that the conference had lasted from 11.00 a.m. until 4.00 p.m. It was probable that the timings recorded by Mr. Gilchrist, as closer in point of time to the actual conference, were the more accurate. However, the precise duration of the conference was not material. What was material was that it was very long, but the typed attendance notes produced were relatively short. Certainly they were a long way from a complete record of every word which had been spoken at the conference. Subsequently, on 15 March 2013, the day after Mr. Aidiniantz withdrew his instructions, and those of Rollerteam, Museum Ltd. and Holmes Ltd., from Coe and transferred his instructions to Davenport Lyons LLP ("Davenport"), Mr. Su, having forgotten that he had already caused to be typed up an attendance note based on his manuscript notes of the conference on 20 December 2012, typed up a further attendance note ("the Second Su Note").

The attendance note of the conference made by Mr. Gilchrist was focused on one matter, not material to any issue in this action, was relatively short, and was incomplete as a record of all that had been discussed at the conference. The fullest attendance note of which a copy was adduced at the trial was the First Su Note. That included the following passages:-

The note that it was Mr. Gilchrist who advised the payment of the £535,000 into court was shown, by reference to Mr. Su's contemporary manuscript notes, to be inaccurate. It was actually Miss Shekerdemian who had given that advice. However, Mr. Gilchrist, who was called to give evidence at the trial, agreed in cross-examination that he did not dissent from her advice on that point at the conference.

It was common ground between Mr. Aidiniantz and Mr. Gilchrist that there was no consideration at the conference with Miss Shekerdemian of the provisions of paragraph 12(6) of the Main Freezing Order. Mr. Aidiniantz and Mr. Gilchrist agreed that no one raised the possibility of all or part of the £535,000 in the Reserve Safe being used to discharge the Main Freezing Order as against one or more of the defendants in the Main Action. Mr. Su was also called to give evidence at the trial. In cross-examination, but not in his witness statement, Mr. Su suggested that actually he might have said something about paying money into court to discharge part of the Main Freezing Order. However, his evidence was very hesitant [Transcript, Day 2, page 172 line 14 – page 173 line 9 and page 174 line 8 to page 175 line 1]:-

At the conference Mr. Aidiniantz agreed with the suggestion that the defendants should offer, at the hearing on the return date the next day, to pay the £535,000 into court. That was done. It was again Norris J who dealt with the matter on the return date. He made an order ("the Return Day Order") by consent on 21 December 2012 which included these provisions:-

By a resolution of the board of directors of Rollerteam passed on 4 January 2013 Coe was, "instructed to represent the company in the claim against L Riley et al and in any other legal matters pursuant to recovering any debts owed to the company or enforcing our legal rights howsoever arising". Counsel already instructed in the Riley Action was David Lewis. He was now instructed also in the Main Action in place of Miss Shekerdemian. A conference took place with Mr. Lewis on 7 January 2013 which was attended by Mr. Aidiniantz, Andrea von Ehrenstein, Mr. Gilchrist and Mr. Su. Mr. Su made an attendance note of the conference. In it he recorded Mr. Lewis as identifying ten possible grounds upon which the Main Freezing Order as continued by the Return Day Order might be discharged. Towards the end of the attendance note Mr. Su recorded this:-

An application for the variation or discharge of the Main Freezing Order as continued by the Return Day Order was duly made on 16 January 2013. However, towards the end of January 2013 Mr. Aidiniantz decided to replace Mr. Lewis by leading counsel, Charles Samek Q.C.. A consultation with Mr. Samek took place on 5 February 2013. Yet once more those attending the consultation, other than counsel, were Mr. Aidiniantz, Andrea von Ehrenstein, Mr. Gilchrist and Mr. Su. Mr. Su again made an attendance note of the consultation. The case for Coe was that Mr. Samek raised the possibility of money being paid into court pursuant to paragraph 12(6) of the Main Freezing Order as continued by the Return Day Order as a means of discharging the order, at least in relation to some of the defendants. That was not recorded in Mr. Su's attendance note. That attendance note did, however, include this paragraph, almost at the end:-

The discharge application was heard by Proudman J on 12 to 15 February 2013 and was dismissed by a judgment delivered on 26 February 2013. The learned judge ordered that the unsuccessful defendants pay SHIS's costs of the discharge application and pay £30,000 on account of those costs. In the event £25,000 was paid by way of costs. As I have already noted, the costs charged by Coe in respect of the discharge application amounted to £108,862.26 plus Value Added Tax of £8,812.44.

After the first day of the hearing before Proudman J, when it had become clear that the hearing would last more than the one day originally anticipated, Mr. Gilchrist sent, at 8.00 p.m., an e-mail to Mr. Aidiniantz explaining the additional fee commitment and asking, "Please confirm in order that I can see what I can do about the refresher fee, although you will understand that the die is to a large extent cast." Mr. Aidiniantz replied, at 23.39 hours on 12 February 2013:-

After the conclusion of the hearing, but before the delivery of judgment, Mr. Aidiniantz wrote an e-mail to Mr. Gilchrist which was sent at 03.29 hours on 16 February 2013. In it Mr. Aidiniantz made, amongst others, this point:-

The thoughts there expressed were Mr. Aidiniantz's own. They were not prompted by anything said to him immediately before he wrote his e-mail by anyone from Coe or by counsel. However, he returned to the theme in an e-mail to Mr. Gilchrist sent at 17.21 hours on 25 February 2013:-

In the event Mr. Samek did try, after the delivery of judgment by Proudman J, to persuade the learned judge that the Main Freezing Order had been discharged at least so far as Rollerteam was concerned by the payment into court of the £535,000. However, she was not having it. In the end she decided to reduce each of the amounts frozen in paragraph 5 of the Main Freezing Order, as varied by the Return Day Order, on a sort of pro rata basis.

The allegations of negligence which were pursued at trial against Coe on behalf of Mr. Aidiniantz, Rollerteam, Museum Ltd. and Holmes Ltd. were those set out at paragraph 19 of the Re-Amended Defence and Part 20 Claim. Coe consented to the re-amendments included in that paragraph made between the first and second days of the trial, so I permitted the re-amendments to be made. The Re-Amended Defence and Part 20 Claim on their face still included allegations of negligence set out at paragraph 25 of the statement of case, although I had been told at the start of the trial that those allegations were not pursued. It might have been helpful if those allegations had been deleted as part of the re-amendment of the Defence and Part 20 Claim, but the fact of the matter was that those allegations were not pursued before me. The only allegations which were pursued were these, in paragraph 19, omitting underlining where it appeared in the original:-

The loss which it is alleged that the Part 20 Claimants suffered in consequence of the negligence alleged was simply the costs paid by them to SHIS pursuant to the order of Proudman J and their own costs, otherwise payable to Coe, of the application for the discharge of the Main Freezing Order as continued by the Return Day Order. Thus, notwithstanding the various allegations in fact made in paragraph 19 of the Re-Amended Defence and Part 20 Claim, the critical allegation amounted to a contention that Coe should have advised Mr. Aidiniantz, Rollerteam, Museum Ltd. and Holmes Ltd. not to pursue the discharge application, but, instead, to use the £535,000, or part of it, to buy the way of one or more of the defendants to the Main Action out of the Main Freezing Order by the mechanism of exploiting paragraph 12(6). A cause of action in negligence is incomplete without proof of loss, and so the only allegations pleaded in the Re-Amended Defence and Part 20 Claim which merited further consideration as allegations in tort were those in paragraph 19(ii) and (v). The other allegations, if made out, only entitled the Part 20 Claimants to nominal damages for breach of contract, which are still £2, the modern equivalent of 40/-. In fact, those other allegations were little more than variations on the contentions set out in paragraph 19(ii).

In his closing submissions Mr. Flenley concentrated, in relation to the case in negligence, upon the point that, if, as had been agreed by Mr. Aidiniantz, the £535,000 was to be paid into court, paying it as to £225,000 on behalf of Rollerteam under clause 12(6)ii of the Main Freezing Order, and as to £100,000 on behalf of Holmes Ltd. under clause 12(6)iv of the Main Freezing Order, or at least paying all of it on behalf of Rollerteam under clause 12(6)ii of the Main Freezing Order, produced the obvious benefit of releasing at least Rollerteam, and perhaps also Holmes Ltd., from the Main Freezing Order. Those submissions gave rise to a number of questions. One was whether, on the information available to Coe at the conference on 20 December 2012, it was, or should have been, obvious which of the respondents in the Main Action were those in whose favour discharge of the freezing order should be sought, there being insufficient funds to pay into court enough to secure the release of all. Another question was whether, actually, securing the discharge of any of the respondents in the Main Action from the Main Freezing Order, was a benefit, given the indication of Mr. Aidiniantz, as recorded in the First Su Note, that the respondents in the Main Action could live with the Main Freezing Order. A further question was, if any one of the respondents to the Main Action had secured release from the Main Freezing Order by a payment into court, whether that benefit, such as it was, would have been challenged on behalf of SHIS, for example by seeking to increase the amount frozen in respect of the particular respondent. And there remained the crucial question whether there was a link between what was alleged as the negligence of Coe and the damages sought to be recovered. There was only such a link if, as was contended on behalf of the Part 20 Claimants, but denied on behalf of Coe, if advised to seek the discharge of the Main Freezing Order against Rollerteam and Holmes Ltd. by making payment into court, Mr. Aidiniantz would not merely have accepted that advice, but also not pursued the discharge application which failed.

The answers to the allegations of negligence set forth in paragraph 19 of the Re-Amended Defence and Part 20 Claim were pleaded at paragraph 16 of the Amended Reply and Defence to Counterclaim in these terms, omitting underlining where it appears in the original:-

At paragraph 14 of the Re-Amended Defence and Part 20 Claim what was pleaded as to the nature of the obligations owed by Coe to Mr. Aidiniantz, Rollerteam, Museum Ltd. and Holmes Ltd. was:-

Paragraph 14 of the Re-Amended Defence and Part 20 Claim was admitted at paragraph 11 of the Amended Reply and Defence to Counterclaim. However, what was pleaded does actually raise a long-outstanding question which is still unresolved at a level above first instance, namely whether a specialist solicitor owes his client a more extensive duty than the ordinary duty to advise and act for the client with the care and skill to be expected of a reasonably competent solicitor. The suggestion that a specialist solicitor might owe a higher duty was made in Duchess of Argyll v. Beuselinck [1972] Lloyd's Rep 172. There have been similar suggestions in other decisions since, but it does not appear that the decision in any particular case has depended upon a finding that the particular solicitor owed a higher duty by reason of his or her specialisation. I do not think that the question arises in this case either. As it seemed to me, if the complaints made against Coe were of substance, they should succeed against any solicitor professing reasonable competence, and did not depend upon Coe being commercial litigation solicitors.

It is, I think, convenient to remind oneself of some observations of Donaldson LJ in Carradine Properties Ltd. v. D.J. Freeman, reported at [1999] Lloyd's Rep PN 483, but actually a case decided in 1982, which observations were approved by the Court of Appeal in Virgin Management Ltd. v. De Morgan Group Plc [1996] EGCS 16. At page 487 of the report Donaldson LJ said:-

The corollary to that approach, which was important to the outcome in Virgin Management Ltd. v. De Morgan Group Plc, is that it is not necessary, in order to discharge the obligation to advise a client with the care and skill to be expected of a reasonably competent solicitor, to point out to the client that which he already knows, or which is blindingly obvious to anyone of reasonable intelligence. The judgment of the Court of Appeal in Virgin Management Ltd. v. De Morgan Group Plc was delivered by Leggatt LJ. So far as is presently relevant, the case concerned whether a solicitor instructed to draft a legal agreement owed a duty to his client to advise concerning the financial implications of the agreement which he was asked to draft. In the course of the judgment of the Court of Appeal Leggatt LJ observed:-

What can be derived from the judgment of the Court of Appeal in Virgin Management Ltd. v. De Morgan Group Plc which is relevant to the circumstances of the present case is that, in the absence of evidence to the contrary, a solicitor is entitled to proceed on the basis that his client is of reasonable intelligence, and so does not require to have the obvious pointed out to him. In my judgment a solicitor is also entitled to proceed, in the absence of evidence to the contrary, on the basis that his client is fluent in the English language, and capable of reading and understanding clear words expressed in the English language. Moreover, a solicitor is entitled to proceed on the basis that a businessman client is familiar with his own business, how it operates, and how it is affected by matters like orders of the court. A businessman client is not entitled to be treated as if he were an illiterate child.

In the present case it was important, as it seemed to me, that the businesses of Rollerteam, Museum Ltd. and Holmes Ltd. were businesses under the control of, and operated by, Mr. Aidiniantz. He knew those businesses. Coe did not, save to the extent that Mr. Aidiniantz chose to tell Coe about those businesses. That does not ignore the fact that, in particular circumstances, proper discharge by Coe of its duty to Mr. Aidiniantz and his companies might require Coe to enquire as to the nature of the businesses and their operation.

As a result of what had happened in the Riley Action, in which Linda Riley had caused the freezing injunction to be discharged, Mr. Aidiniantz knew perfectly well, and his companies knew through him, that it was possible, at least in some circumstances, for a freezing order to cease to have effect because the amount frozen was paid into court or otherwise secured. Thus in fact it was not necessary for Coe to tell Mr. Aidiniantz or his companies of that possibility. However, it was unclear on the evidence before me when Coe became aware of what had happened in the Riley Action. Probably it was not until after Coe was instructed in that action on about 4 January 2013. Consequently, as it seemed to me, it was appropriate for Coe to advise Mr. Aidiniantz of the existence and effect of paragraph 12(6) of the Main Freezing Order once it was instructed. The terms of that sub-paragraph were not difficult to understand. Comprehension of the words used did not depend upon any specialist knowledge of commercial litigation solicitors. All it required, in order to understand the sub-paragraph, was reasonable fluency in the English language. Anyone of reasonable intelligence who read paragraph 12(6) should be able to understand it. However, with a long and detailed order, such as the Main Freezing Order, it was undoubtedly incumbent upon Coe to explain to Mr. Aidiniantz and his companies that sub-paragraph 12(6) was included in the order, and what the effect of it was. Coe performed those obligations in the letter of advice dated 18 December 2012 in the passage which I have quoted. It was, I think, a fair point, that the terms in which the advice was given was ambiguous as to whether it was necessary, in order to secure the discharge of the Main Freezing Order in respect of any particular respondent in the Main Action, to pay in all of the sums frozen in respect of any of the respondents, or only the sum frozen in respect of that particular respondent. Someone who had read and understood paragraph 12(6) of the Main Freezing Order would have been able to resolve that ambiguity. Someone who was confused as to any apparent inconsistency between the terms of paragraph 12(6) and the relevant passage in the letter dated 18 December 2012 could have sought clarification. When he came to give evidence at the trial, Mr. Aidiniantz, at any rate during part of his cross-examination, assented to the proposition that the terms of the Main Freezing Order were clear. Again, at times in his cross-examination he accepted that he had read the Main Freezing Order carefully when he received it, and that that was so was demonstrated by his e-mail to Mr. Su picking up the terms of paragraph 12(4).

Mr. Flenley submitted that it was not enough, to perform its duty, for Coe to write in the terms which it had in the letter dated 18 December 2012. As the relevant passage seemed itself to contemplate, submitted Mr. Flenley, it was incumbent upon Coe to go further and, "for us to consider with you in further detail". I reject that submission. By what it did say in the letter Coe drew to the attention of Mr. Aidiniantz, subject to the ambiguity which I have identified, that the effect of the making of the Main Freezing Order could be avoided by paying into court the amount frozen in respect of any respondent, or by providing security for payment of that amount. It was then for him to decide whether that possibility was of interest to him. If so, he could pursue the matter with Coe. If not, then nothing further needed to be said about it. Mr. Aidiniantz did not go back to Coe seeking to pursue the possibility of having the Main Freezing Order discharged in respect of any particular respondent by paying into court the amount frozen in respect of that respondent. There was no reason for Coe, as reasonably competent solicitors, to seek itself to pursue the matter further at that stage, not least because the effect of buying one's way out of paragraph 12(6) would involve putting up money which could not, thereafter, be used for other purposes until after the trial of the Main Action, or providing security which likewise could not be used for other purposes. The attractiveness, or not, of this particular option was, as at 18 December 2012, entirely one for Mr. Aidiniantz to decide.

In my view, matters changed somewhat by the time of the conference with Miss Shekerdemian on 20 December 2012. By that time Coe was aware of the existence of the sum of £535,000 in the Reserve Safe. However, the ownership of that money was unclear, not least because the instructions of Mr. Aidiniantz concerning it changed between 18 December 2012, when he said that the money was owned by Rollerteam, and 19 December 2012, when he said that the money, or at any rate getting on for half of it, should be allocated as the income of SHIS. Notwithstanding those changed instructions, the fact remained that, at that time, it was open to whoever had control of the money to apply it pursuant to the provisions of paragraph 12(6) of the Main Freezing Order.

It was plain that the sum of £535,000 was insufficient to enable all of the defendants in the Main Action to have the freezing order against them discharged by payment into court. The information which Mr. Aidiniantz gave at the conference on 20 December 2012 was to the effect that both Museum Ltd. (because it operated the credit card machines) and Holmes Ltd. were operating companies, with both companies operating the shops. Rollerteam appeared not to be an operating company, from what Mr. Aidiniantz told the conference, because it was simply the entity which held the freehold of the Museum Premises, albeit that Mr. Aidiniantz considered the income generated by any of the companies which he controlled as basically that of Rollerteam. The effect of the Main Freezing Order as against Rollerteam was only to freeze £225,000. It could use whatever funds it had, or could generate, in excess of that amount. From what Mr. Aidiniantz said at the conference, the running of his businesses was not actually affected by the Main Freezing Order. That was not altogether surprising. Rollerteam seemed, from what Mr. Aidiniantz said, to have no business, other than to receive money. By paragraph 12(4) of the Main Freezing Order each of Rollerteam, Museum Ltd. and Holmes Ltd. was free to continue to deal with or dispose of its assets in the ordinary course of business. That Mr. Aidiniantz well understood, as he demonstrated in his e-mail to Coe sent at 16.05 hours on 19 December 2012 from which I have quoted. Thus in the circumstances, as it seems to me, it was far from obvious that any benefit was to be achieved by taking advantage of the provisions of paragraph 12(6) of the Main Freezing Order, as opposed to relying on paragraph 12(4). There seems to have been no point at all in seeking to have the Main Freezing Order discharged as against Rollerteam.

In my judgment, it was for Mr. Aidiniantz to say, at the conference, if he wished to consider procuring a discharge of the Main Freezing Order in the case of any of the respondents by making a payment into court, because only he could determine whether he perceived any benefit in that course, and for which company or companies. For the reasons which I have given, it seems to me that an objective observer, given the information which Mr. Aidiniantz conveyed at the conference, would not have identified any benefit.

That there was actually no benefit in seeking to have any of the defendants in the Main Action discharged from the Main Freezing Order by the making of a payment into court is rather demonstrated by the damages claimed in the Part 20 Claim. If a tangible benefit had been lost by not taking that course, one would imagine that that benefit would have had a value the loss of which could form an element in a claim for damages. However, as I have pointed out, nothing was claimed other than the costs of and associated with the discharge application. Those costs were incurred not because advice was not given to seek to free a defendant in the Main Action from the effects of the Main Freezing Order, but because the discharge application was made and failed. The nature of the damages claimed suggested that the only theoretical proper claim against Coe would be for not advising against the making of the discharge application, but no such allegation was made, other than linked to the allegation that Coe should have advised making payments pursuant to paragraph 12(6) of the Main Freezing Order instead of pursuing a discharge application.

It is obviously true that the £535,000 which it was agreed at the conference on 20 December 2012 should be paid into court, might have been stated to have been paid in by Rollerteam. Indeed, it seems to me that the £535,000 could have been split, so that £100,000 was paid in by Holmes Ltd. and the balance paid in by Rollerteam. But what was the point of doing that? Mr. Flenley submitted that I should accept the evidence of Mr. Aidiniantz that, had Rollerteam and Holmes Ltd. been discharged from the Main Freezing Order, he would not have pursued the application to discharge the Main Freezing Order and the costs of that activity would not have been incurred. I shall come to the merits of that submission as put, but it was important, as it seemed to me, that, on the material put before Mr. Gilchrist and Mr. Su by Mr. Aidiniantz at and before the conference with Miss Shekerdemian, and put before her at the conference, it was not obvious, at least not to anyone other than Mr. Aidiniantz, which of Rollerteam, Museum Ltd. and Holmes Ltd. could usefully be discharged from the Main Freezing Order by making payment into court from the £535,000. The money was not sufficient to secure the discharge of Mr. Aidiniantz personally. It was not sufficient to secure the discharge of more than two out of Rollerteam, Museum Ltd. and Holmes Ltd. On the basis of what Mr. Aidiniantz said at the conference the obvious two to identify, if there was a duty to identify anyone, were Museum Ltd. and Holmes Ltd., the companies which appeared to be trading. Yet the case for the Part 20 Claimants was, in effect, that it was negligent of Coe not to advise that the £535,000 be paid into court in such a manner as to secure the discharge of Rollerteam and Holmes Ltd., or at least Rollerteam. That seemed to me to be an impossible submission, on the material put before Mr. Gilchrist and Mr. Su. It was simply not necessary for Coe to advise further than in the letter dated 18 December 2012 concerning the possibility of securing the discharge of a respondent to the Main Freezing Order by payment into court, without Mr. Aidiniantz indicating interest in securing discharge in that manner, and himself choosing who should be the beneficiary or beneficiaries of that approach.

I am entirely satisfied on the evidence that Mr. Aidiniantz deliberately pursued the discharge application because he wanted to seek advantage over those behind SHIS in the Main Action. He wished to seek to negative the advantage which SHIS appeared to have achieved by the grant of the Main Freezing Order. It was only when he realised that there was a significant chance that the discharge of the Main Freezing Order might not be achieved that Mr. Aidiniantz decided, without any contribution from anyone else, that he might at least be able to salvage face, if not anything of any practical benefit, if the outcome of the discharge application was at least that Rollerteam, and, perhaps, another of the defendants in the Main Action, were discharged by virtue of the payment into court of £535,000.

It should be borne in mind that, if the advice which it was contended it was negligent of Coe not to have given, that payment into court of the £535,000 should have been made on behalf of Rollerteam and, possibly, also Holmes Ltd., had been given and accepted, on any view the Main Freezing Order would have continued in force as against at least Mr. Aidiniantz personally and Museum Ltd., but possibly also Holmes Ltd. That needed to be remembered in evaluating the evidence of Mr. Aidiniantz at the trial that he would have accepted the continuation of the Main Freezing Order in his own case, and that of Museum Ltd., which he said was a dormant company, albeit a dormant company with over £423,000 in the bank, and possibly also Holmes Ltd., if only the Main Freezing Order had been discharged as against Rollerteam. In effect his siblings, on any view, would have landed a blow upon him to counter the blow which the freezing order in the Riley Action had landed upon Linda Riley, and he could not entirely escape that by the suggested payment into court.

It seems to me that the advice which Miss Shekerdemian gave in conference that the £535,000 should be paid into court, from which advice Mr. Gilchrist did not demur, was sensible. Any judge told, on the hearing on a return date after the grant of a freezing order, that compliance with the disclosure obligations had revealed a large amount of cash kept in a safe in a private house, must inevitably have been at least inclined, in the absence of satisfactory explanation, to treat the circumstances as evidence of a real risk of dissipation. Seeking to negative such impression by paying the money into court was a sensible move. Allocating various elements of the money disclosed to payments for the purposes of paragraph 12(6) of the Main Freezing Order might itself attract suspicion. As I have said, it is possible that the payment of the sum of £535,000 into court could have been made expressly on behalf of Rollerteam, and that the benefit of paragraph 12(6) could have been claimed for Rollerteam on that basis. However, that would have achieved nothing of value, for the reasons which I have explained, unless, had that happened, Mr. Aidiniantz would have instructed that the discharge application not be pursued. I have already recorded my finding that that would not have happened. It was plain from the e-mails which Mr. Aidiniantz wrote on 18 and 19 December 2012, from which I have quoted, that he was convinced that it had not been appropriate for SHIS to have sought a freezing order without notice, and that he wanted to rectify the injustice which he considered had resulted from the grant of such injunction. His instructions as recorded at each of the conferences which he had with junior counsel were always clearly that an application for discharge of the Main Freezing Order should be made. Miss Shekerdemian, who was called to give evidence on behalf of Coe, told me that she could remember little in detail of the conference with her on 20 December 2012, but what she positively remembered was that, as it was put at paragraph 12 of her witness statement dated 25 July 2014 prepared for the purposes of this action, "Mr. Aidiniantz was insisting that the freezing order had been obtained improperly and that the Court had been misled". In her oral evidence Miss Shekerdemian expanded on that [Transcript, Day 3, page 54 lines 8 -12]:-

That evidence of Miss Shekerdemian was supported by the evidence of Mr. Gilchrist. At paragraph 44 of his witness statement dated 25 July 2014 prepared for the purposes of this action Mr. Gilchrist observed, inter alia:-

Mr. Su recalled a contribution of his own during the conference with Miss Shekerdemian. At paragraph 11 of his witness statement dated 25 July 2014 prepared for the purposes of this action Mr. Su said:-

That evidence of Mr. Su was supported by the evidence of Mr. Gilchrist. At paragraph 51 of his witness statement Mr. Gilchrist said:-

Mr. Aidiniantz denied that the recollection of Miss Shekerdemian of his attitude at the conference on 20 December 2012 was accurate, and, from his witness statement dated 25 July 2014 prepared for the purposes of this action, it appeared that he denied that Mr. Su had said anything about the possibility of living with the Main Freezing Order. At paragraph 50 of his witness statement he said, of the conference on 20 December 2012:-

Mr. Aidiniantz gave evidence at the trial on his own behalf and on behalf of the other Part 20 Claimants. He was the only witness called at the trial on behalf of the Part 20 Claimants. I am afraid to say that I was not impressed by Mr. Aidiniantz as a witness. He seemed to be astute to assess the implications of any question put to him in cross-examination before deciding how to answer it in terms which he considered most likely to favour his, and his companies', case. Almost at the outset of his cross-examination Mr. Aidiniantz rather danced around giving a clear and accurate account of the nature of the business of each of Rollerteam, Museum Ltd., Holmes Ltd. and SHIS. He denied that Rollerteam was a holding company when that was put to him. When he was shown the annual accounts of Rollerteam for the year ended 28 February 2012, in which Rollerteam was described as a holding company, he asserted that that was an error on the part of the accountants who had prepared the accounts, and was a reason for those accountants' retainer being terminated. However, later, in answer to me, he accepted that actually all Rollerteam did was to receive payments in the nature of rent from other companies which he controlled. Mr. Aidiniantz contended that Museum Ltd. was a dormant company, notwithstanding that, as at the date of the Main Freezing Order that company held a substantial amount of cash in the bank, some £423,106.46, and that he had himself described Museum Ltd. at the conference on 20 December 2012 as being one of the companies which ran the shops at the Museum Premises. He was very reluctant to be tied down as to the business of SHIS and how that operated. Eventually he accepted that he was de facto a director of that company, at least in one sense, and that he advised the directors of SHIS as to how the business of that company should be operated from year to year, as well as organising transfers from or to the bank account of SHIS. Mr. Aidiniantz was also noticeably cautious in dealing with questions as to whether, once it had been served on him, he had read and understood the Main Freezing Order. At one point he said that he could read the plain wording of the order, and it was clear, for example from his drawing to the attention of Mr. Su the terms of paragraph 12(4), that indeed he had read it and understood it. It was not difficult, in terms of the use of the English language employed in the Main Freezing Order, for someone of reasonable intelligence to understand it. However, Mr. Aidiniantz mostly sought to suggest that he had not read the Main Freezing Order carefully until about 16 February 2013, or possibly as late as 25 February 2013, and did not really comprehend before then exactly how the order worked. This self-serving evidence, contrary to what could be derived from contemporaneous documents produced by Mr. Aidiniantz, persuaded me that his evidence could not be relied upon where it conflicted with the evidence of other witnesses called to give evidence at the trial.

All of this said, in cross-examination Mr. Aidiniantz did agree that Mr. Su had made the contribution at the conference on 20 December 2012 of which Mr. Su spoke in his evidence concerning whether Mr. Aidiniantz and his companies could live with the order. Indeed he agreed [Transcript, Day 3, page 132 lines 3 – 6]:-

In stark contrast to the evidence of Mr. Aidiniantz, I found that each of Mr. Gilchrist, Mr. Su, Mr. Samek and Miss Shekerdemian was engagingly frank in cross-examination, even on points which might have been thought to cast doubt on their professional competence. No such issue was raised in relation to Mr. Samek, but such questions did arise in relation to the evidence of the other witnesses called on behalf of Coe. I found Mr. Su, who was no longer employed by Coe, a particularly engaging character, but I am entirely satisfied that each of the witnesses called on behalf of Coe did his or her best to assist me so far as able to do so. Subject to one matter, I accept that evidence without reservation. I was not persuaded that Mr. Su's rather hesitant recollections of raising the possibility of payment into court under paragraph 12(6) of the Main Freezing Order at the conference on 20 December 2012 were accurate. I think that he was probably getting confused in that part of his evidence with what happened at the consultation with Mr. Samek. I am completely satisfied that at the conference on 20 December 2012 Mr. Aidiniantz's main concern was to secure the discharge of the Main Freezing Order.

In addition to the reasons which I have already mentioned, a further reason why I find that Mr. Aidiniantz would not have decided not to pursue the discharge application, had it been brought to his attention (as he contended that it had not been) that he and his companies could either live with the Main Freezing Order, or sums could be paid to buy one or other of the defendants out of the Main Freezing Order, is what I am satisfied was said at the consultation with Mr. Samek on 5 February 2013.

Mr. Samek was called as a witness at the trial. In July 2013, at a time by which it had become clear that Mr. Aidiniantz was dissatisfied with the advice which he had been given by Coe in relation to the Main Freezing Order, Mr. Gilchrist asked Mr. Samek to consider Mr. Su's attendance note of the consultation on 5 February 2013 and to comment upon its accuracy. Mr. Gilchrist also asked Mr. Samek for his recollection of Mr. Aidiniantz's "purposeful intent at the meeting", and whether Mr. Samek had any notes about that. Mr. Samek replied in an e-mail sent at 10.20 hours on 8 July 2013:-

Mr. Samek told me, when he came to give evidence, that his recollection at the time of the trial remained as it had been when he wrote that e-mail. His evidence of what he had said was supported by both Mr. Gilchrist and Mr. Su.

In his witness statement, at paragraph 102, Mr. Gilchrist said:-

At paragraph 18 of his witness statement Mr. Su said:-

Unsurprisingly Mr. Aidiniantz was asked in cross-examination about the evidence of Mr. Samek in his e-mail of 8 July 2013, and the evidence of Mr. Gilchrist and that of Mr. Su which supported Mr. Samek's account. The evidence of Mr. Aidiniantz on the point struck me as profoundly unsatisfactory – essentially, that he did not recall Mr. Samek saying what Mr. Samek had recorded in his e-mail, and he, Mr. Aidiniantz must be right that it was not said, because otherwise it would have been recorded in Mr. Su's attendance note. These answers give the flavour of Mr. Aidiniantz's evidence on the point:-

Mr. Flenley submitted that actually it was too late, by the date of the consultation with Mr. Samek, sensibly to have changed course, abandoned the application for discharge of the Main Freezing Order, and sought to rely upon payment in under paragraph 12(6) in order to secure release of Rollerteam and Holmes Ltd. from the Main Freezing Order. I do not accept that. The evidence indicated that in fact there was money, as at about 5 February 2013, which could have been added to the £535,000 already in court to secure discharge under paragraph 12(6) of Rollerteam and Holmes Ltd., had Mr. Aidiniantz so chosen. Mr. Aidiniantz said in his cross-examination [Transcript, Day 4, page 151 lines 1 – 9 and Transcript, Day 4, page 152 lines 18 - 25]:-

Despite what he said at the end of the quotation in the previous paragraph, actually Mr. Aidiniantz and his companies did not pay any further money into court, but I accept his evidence that they were in a position to do so. Had they done so, there was serious money to be saved. No doubt some costs had been incurred in connection with the application for discharge, and no doubt SHIS would have sought payment of its costs as at that time in connection with the discharge application. However, Mr. Samek's brief fee and refreshers, plus Coe's profit costs of the hearing before Proudman J, would not have been incurred, and the level of costs which was sought on behalf of SHIS must certainly have been much less than the £25,000 ultimately paid. That these savings were not made was because of Mr. Aidiniantz's determination to pursue the discharge application.

In the result I am satisfied that there is no substance whatsoever in the allegations of negligence made against Coe in the Part 20 Claim. For the reasons which I have explained, it was not incumbent upon Coe to give the advice which it is alleged that it did not give as to the possibility of paying parts of the £535,000 into court in order to procure the discharge of the Main Freezing Order as against Rollerteam and Holmes Ltd., as Mr. Aidiniantz, being aware of the possibility of procuring discharge by payment into court, had expressed no interest in that option. The advice given in the letter dated 18 December 2012 as to the possibility of paying money into court to secure the discharge of the Main Freezing Order was sufficient. If more explicit advice had been given before the decision to pay the £535,000 into court had been made, it would have been ignored on the critical point of not pursuing a discharge application, because Mr. Aidiniantz was determined to seek to have the Main Freezing Order discharged in order to secure advantage over those behind SHIS. That is the course upon which he resolved to continue after the consultation with Mr. Samek when, on my findings, he was told in terms that money could be paid into court in order to secure the release of any particular defendant in the Main Action from the Main Freezing Order as continued by the Return Day Order.

In the light of my conclusion that the Part 20 Claim failed in relation to allegations of negligence, the question whether Coe was entitled to judgment for the sums claimed in this action depended upon four classes of issue. The first class was whether the Part 20 Claimants were entitled to have assessed, pursuant to the provisions of Solicitors Act 1974 s.70, or at common law, those bills which they wished to have assessed. The answer depended on the second class of case and the third class of case. The second class was in the nature of one type of answer to such entitlement, whether, as was contended on behalf of Coe, by reason of exchanges between Mr. Aidiniantz and Coe after Mr. Aidiniantz had decided to instruct Davenport in place of Coe, Mr. Aidiniantz and Rollerteam had agreed not to challenge the bills outstanding unpaid, or were estopped from seeking assessment, or had waived any right to assessment. The different contentions in this class of case depended not on different facts, but upon the proper analysis in law of the same basic facts. The third class of case only arose if Coe failed on the second class of case. It was whether the Part 20 Claimants had demonstrated, in relation to bills sought to be assessed which were unpaid, that it was appropriate for the court to exercise its jurisdiction under Solicitors Act 1974 s.70(2), or at common law, to order assessment, or, in relation to bills which it was sought to have assessed which had been paid, whether there were "special circumstances" within the meaning of Solicitors Act 1974 s.70(3) which made it appropriate for me to order an assessment of the bills of which assessment was sought, or whether the Part 20 Claimants were entitled to assessment at common law. The final class of issue was whether, by his letter of 5 January 2013, on proper construction, Mr. Aidiniantz had in truth agreed to indemnify Coe in respect to sums falling due to Coe from Rollerteam.

It is convenient to consider next the contentions of Coe that Mr. Aidiniantz and Rollerteam had forgone any entitlement to assessment of any bills.

The matters to which this class of issue gave rise were pleaded in the Amended Reply and Defence to Counterclaim at paragraph 28:-

By an e-mail sent to Mr. Gilchrist and Mr. Su at 16.42 hours on 14 March 2013 Mr. Aidiniantz informed them that:-

Mr. Gilchrist replied at 21.07 hours on 14 March 2013. One of the points he made in that e-mail was that:-

He went on to explain the sums considered to be outstanding and asked for "a CHAPS transfer tomorrow of £73,211.39".

In an e-mail sent at 9.31 hours on 15 March 2013 to Mr. Aidiniantz Mr. Gilchrist enquired,

The reaction of Mr. Aidiniantz to receipt of the e-mail sent at 21.07 hours on 14 March 2013 and that sent at 9.31 hours on 15 March 2013 was to send an e-mail to Mr. Gilchrist at 10.18 hours on 15 March 2013 which was in these terms, so far as presently material:-

The e-mail was fielded by Mr. Gilchrist's secretary, Amber Mahoney, who attached final accounts to an e-mail to Mr. Aidiniantz sent at 11.48 hours on 15 March 2013. Mr. Aidiniantz then telephoned Amber Mahoney, and following that telephone conversation she sent Mr. Aidiniantz revised figures in an e-mail despatched at 12.58 hours on 15 March 2013. That e-mail recorded as due a total sum of £103,489.67. Mr. Aidiniantz replied to that e-mail at 13.39 hours on 15 March 2013:-

That e-mail, as it seems to me, was an offer by Mr. Aidiniantz, on behalf of himself, Rollerteam, Museum Ltd. and Holmes Ltd. to agree the amount due to Coe in respect of fees outstanding as at 15 March 2013 in the sum of £103,500.17.

At 13.54 hours on 15 March 2013 Mr. Aidiniantz sent to Mr. Su an e-mail in which he said, amongst other things:-

"Payment List 12" which was attached to the e-mail was a notification to HSBC Bank plc ("HSBC") of intention to make various payments out of accounts of Holmes Ltd. and Rollerteam with HSBC. A notified, intended payment out of an account of Rollerteam was of £103,500.17 to Coe. Strictly, in my judgment, that was an offer by Rollerteam, acting by Mr. Aidiniantz, to pay the agreed sum of £103,500.17 to Coe "as soon as I receive your confirmation" in consideration at least of Mr. Su notifying HSBC of the wish to make the payments in "Payment List 12". That is fairly insubstantial consideration, but the law is not concerned with the adequacy of consideration, merely with whether the person required to provide consideration did something in return for the promise of the promisor. Here the something was to notify HSBC. That Mr. Su did by an e-mail sent to Anne Hudson at HSBC at 14.56 hours on 15 March 2013, which was copied, as confirmation, to Mr. Aidiniantz.

It was common ground that, following receipt of the e-mail sent at 13.54 hours on 15 March 2013 Coe did permit various papers to be collected from its offices by Davenport on 18 March 2013. It appeared that, at least as to the greater part, those papers were papers of which Mr. Aidiniantz already had copies. It was implicit in the cross-examination of Mr. Gilchrist by Mr. Flenley that somehow releasing a lien over papers of which a client already had copies was not sufficient to amount to providing consideration for an agreement on the part of the client to pay the solicitor's fees. I reject any such implicit submission. I have already observed that the law is not concerned with the adequacy of consideration. Coe might have declined to release any of the papers which it did release until its fees were paid. It did not.

Rather, what seems to have happened is that Mr. Aidiniantz sent an e-mail at 15.22 hours on 15 March 2013 to a number of people, including Mr. Gilchrist and Mr. Su, in which he said, so far as is presently material:-

There followed a further couple of e-mail exchanges between Mr. Su and Mr. Aidiniantz, as well as contact between Coe and Davenport, concerning the handing over of papers held by Coe. At 17.53 hours on 15 March 2013 Mr. Aidiniantz sent an e-mail to Mr. Su, copied to Mr. Gilchrist, in the following terms:-

On the evidence of Mr. Gilchrist, at paragraph 132 of his witness statement,

In those circumstances, it seems to me that actually Mr. Aidiniantz made three separate offers to Coe. One was to agree, on behalf of himself, Rollerteam, Museum Ltd. and Holmes Ltd., the costs of Coe in the sum of £103,500.17. That was the offer contained in the e-mail sent at 13.39 hours on 15 March 2013 by Mr. Aidiniantz. That offer had not been accepted by Coe by the time of the second offer, and the making of the second offer, in the e-mail sent at 13.54 hours on 15 March 2013, because it included a new provision – as to time of payment – amounted to a withdrawal of the first offer and the substitution of a new one. The second offer, as I have noted, was to pay the agreed sum of £103,500.17 "as soon as I receive your confirmation". That offer was accepted in the manner which I have already noted, Mr. Su doing that which was sought by Mr. Aidiniantz in making the offer. The third offer was that contained in Mr. Aidiniantz's e-mail sent at 17.53 hours on 15 March 2013 and was that Coe would be paid £103,500.17 by Rollerteam if the papers request of which was sought were released. However, the papers which Mr. Aidiniantz had requested were not, in the event, all released. Rather, because payment had still not been received when a courier came to collect the papers on 18 March 2013, Coe only released a limited number of papers. It was not contended that the offer contained in the e-mail sent at 17.54 hours on 15 March 2013 was accepted expressly. Indeed it was not pleaded that it constituted part of a contract at all. That, I think, was sensible. Absent an express acceptance, the only obvious way of accepting the offer was permitting collection of the papers requested. Releasing only some of the papers did not amount to acceptance of the offer.

Thus where one got to, in my judgment, was an agreement on the part of Mr. Aidiniantz, Rollerteam, Museum Ltd. and Holmes Ltd. to pay Coe £103,500.17 in settlement of the fees outstanding of Coe as at 15 March 2013 on 15 March 2013, that being when Mr. Aidiniantz received the necessary confirmation.

Mr. Flenley submitted that agreement on the part of a client to pay his solicitor's bill in a particular amount did not, of necessity, involve the client agreeing not to seek to have the bill assessed. I think that that must be correct. Were it not so, Solicitors Act 1974 s.70(3)(c) would not be in the terms in which it is. Prima facie payment of a bill rendered indicates agreement to the amount of it, yet Solicitors Act 1974 s.70(3)(c) in terms provides for assessment of a paid bill, if there are "special circumstances".

My attention was drawn to a number of authorities concerning the assessment of solicitor's bills and the significance of "agreement" on the part of a client.

In Turner & Co. v. O. Palomo SA [2000] 1 WLR 37 the Court of Appeal was concerned with the common law jurisdiction of this court to order a solicitor's bill to be assessed. The judgment of the court was delivered by Evans LJ. At page 40 of his judgment he explained the relationship between the common law jurisdiction of the court to direct the assessment of a solicitor's bill and the provisions of Solicitors Act 1974 s.70:-

At page 51 of the report Evans LJ expressed the conclusion of the Court of Appeal that:-

Thus the position at common law is that a client is entitled to have a solicitor's bill of costs assessed unless he has agreed the amount of the bill. If he has agreed the amount of the bill, at common law, the analysis is that the agreement of the bill is in the nature of a compromise. In place of the inchoate right of the solicitor to payment for work done on a quantum meruit, there is substituted an agreement by the solicitor to accept, and by the client to pay, the agreed sum. Consideration for that agreement is provided from both sides. The solicitor forgoes his right to a reasonable sum, to be determined by the court, and, the client forgoes his right to assessment in consideration of the solicitor agreeing to accept the agreed sum.

In the light of my finding that Mr. Aidiniantz agreed, by his offer in his e-mail sent at 13.54 hours on 15 March 2013, on behalf of himself, Rollerteam, Museum Ltd. and Holmes Ltd., to pay £103,500.17 in settlement of Coe's fees outstanding as at that date, which offer was accepted by Coe, it was not open to Mr. Aidiniantz or Rollerteam or Museum Ltd. or Holmes Ltd. to seek, at common law, assessment of Coe's bills outstanding unpaid.

The position under Solicitors Act 1974 s.70 was different. As I have pointed out, agreement of a solicitor's bill does not, of itself, and inevitably, amount to the client agreeing to forgo the statutory entitlement to an assessment, but, after the expiry of one month from the delivery of the bill, whether there should be an order for assessment is a matter for the discretion of the court. While I do not suggest that parties could not, by an appropriately worded agreement, agree not only that the client should pay the solicitor's bill in a particular amount, but also that the client would not thereafter seek to have the bill assessed, it would be wrong to consider that, without more, agreement to pay a particular amount, or payment of the amount of a bill, prevented the client from seeking an assessment. However, the fact of agreement of a particular sum as due to the solicitor is bound to be important to the consideration of the court as to whether, in the particular circumstances, assessment should be directed, in the exercise of the discretion of the court.

Mr. Stewart Chirnside, who appeared on behalf of Coe, drew to my attention two decisions at first instance on the issue whether, in the bankruptcy jurisdiction, the agreed amount of a solicitor's bill could found, in the one case a bankruptcy petition, in the other a statutory demand. The earlier case in point of time was a decision of Proudman J, Truex v. Toll [2009] 1 WLR 2121. At paragraph 30 of her judgment, page 2128 of the report, Proudman J said:-

The reference to compromise is, essentially, the analysis which I have already explained. It is interesting that the issue arose in Truex v. Toll whether it was possible to contract out of the provisions of Solicitors Act 1974 s.70. Proudman J did not finally decide the point, but it was suggested that one could not. I have already expressed my view on that point.

The second of the cases at first instance was a decision of Morgan J, Wallace LLP v. Yates [2010] EWHC 1098 (Ch). Morgan J summarised the views of Proudman J in Truex v. Toll, but did not comment upon those views, and it was submitted that, implicitly at any rate, thereby indicated his agreement. As the views of Proudman J which I have quoted were basically the same as my own on the relevant point, it is not necessary possibly to embarrass Morgan J by seeking to implicate him in similar views on the basis of what he actually said in Wallace LLP v. Yates, not least because, given her actual decision in the case, the paragraph which I have quoted from the judgment of Proudman J seems to have been obiter.

In the result, although I have been persuaded that a contract was made between Mr. Aidiniantz, Rollerteam, Museum Ltd. and Holmes Ltd. and Coe that Mr. Aidiniantz, Rollerteam, Museum Ltd. and Holmes Ltd. would pay Coe £103,500.17 in respect of the professional services provided by Coe, and that, consequently, it was not open to Mr. Aidiniantz, Rollerteam, Museum Ltd. or Holmes Ltd. to seek assessment of the bills of Coe at common law, it was open to them at least to ask for assessment of the relevant bills under Solicitors Act 1974 s.70.

Mr. Aidiniantz certainly represented to Coe that Coe would be paid £103,500.17, and I accept the evidence of Mr. Gilchrist that he relied upon that representation in agreeing to the release of the lien of Coe over some papers. The representation, on its face, was of an intention to make a payment in the future, but that representation involved a further representation, namely that at the time it was made it was actually the intention of Mr. Aidiniantz to arrange for the payment to be made. The evidence of Mr. Aidiniantz was that he changed his mind about making payment after genuinely having an intention to cause payment to be made. I do not accept that. I have already indicated my view of the evidence of Mr. Aidiniantz generally. However, in relation to Mr. Aidiniantz's professed desire actually to give instructions to HSBC to pay Coe on 15 March 2013, the most compelling evidence against acceptance of Mr. Aidiniantz's evidence was that he did not in fact give the relevant instructions. Although he contended that he had been frustrated in giving the instructions by lack of time because of the need to finalise the account, on Mr. Aidiniantz's own e-mail sent at 13.39 hours on 15 March 2013 he knew perfectly well that the sum due was £103.500.17, an amount £10.50 more than the total which Coe had reached by adding up the outstanding bills. There was no sensible reason for him not to give instructions to HSBC to pay Coe £103,500.17 if he genuinely intended that payment should be made.

However, Mr. Flenley submitted that, whereas the law was not concerned, in the context of the making of a contract, with the value of consideration, but only with whether there was technically consideration to support the contract, that was not the position in relation to estoppel. He drew to my attention the decision of the Court of Appeal in Gillett v. Holt [2001] Ch 210. The only substantive judgment was that of Robert Walker LJ. At page 232 he said:-

Mr. Flenley emphasised that what Mr. Aidiniantz actually got out of Coe in the light of the assurance given was not much of value, because most of what was released was material already in the possession of Mr. Aidiniantz. Had that been an important point, I should have rejected it. However, the important point in the circumstances of the present case, as it seemed to me, was not whether it was unconscionable for Mr. Aidiniantz and Rollerteam to go back on the assurance given, but what the assurance was. It was an assurance to pay, not an assurance not thereafter to seek assessment of the bills of Coe. For that reason I reject the submissions of Mr. Chirnside that Mr. Aidiniantz, Rollerteam, Museum Ltd. and Holmes Ltd. should be treated as estopped from seeking assessment of Coe's bills.

Each of the bills rendered to Mr. Aidiniantz or to another of the Part 20 Claimants was endorsed, on the front, "Please see notice on reverse", and, on the reverse:-

Thus Mr. Aidiniantz, and the other addressees of bills rendered by Coe, had an option, if he or it chose, to have the bills assessed. They did not choose that option at the time of delivery of the relevant bills. The question was whether, by not having done so, they should be treated as having waived any entitlement thereafter to seek assessment. In my judgment that was an impossible submission, given the terms of Solicitors Act 1974 s. 70. By Solicitors Act 1974 s,70(2) Mr. Aidiniantz, Rollerteam, Museum Ltd. and Holmes Ltd. were entitled to apply to the court for a direction for assessment of unpaid bills delivered less than 12 months from the date of the application and which were unpaid. By Solicitors Act 1974 s.70(3) Mr. Aidiniantz, Rollerteam, Museum Ltd. and Holmes Ltd. were entitled to apply to the court for assessment of bills paid less than 12 months before assessment was sought. It would be very strange if a party with those statutory rights was considered to have waived them merely because it did not seek to exercise them immediately, yet that was the effect of Mr. Chirnside's submission.

Given that the Part 20 Claimants were not disentitled from applying to the court for an order for assessment of the bills sought to be challenged, it was necessary to consider whether the court should exercise its jurisdiction to order assessment of any of the bills.

The case of the Part 20 Claimants pleaded in the Re-Amended Defence and Part 20 Claim in relation to the alleged entitlement to assessment of bills was this:-

In fact Coe rendered seven bills to one or other of the Part 20 Claimants. For reasons which were obscure the bills listed in the Second Schedule to the Re-Amended Defence and Part 20 Claim only numbered five. Of those five, two, numbered, respectively, 2013-4619 and 2013-5092, had been paid in full. Assessment was sought of one bill paid in part, 2013-5325, in relation to which £9,034.79 out of £88,216.49 was outstanding. Bill numbered 2013-5325 was addressed to all of the Part 20 Claimants. The bills paid in full had been addressed to all of the Part 20 Claimants. Assessment was not sought of the bill numbered 2013-5693, in the sum of £4,429.60, addressed to Mr. Aidiniantz and Rollerteam, but relating to the Possession Action, or of the bill numbered 2013-5694, in the sum of £8,278.80, again addressed to Mr. Aidiniantz at Rollerteam, but relating to the Riley Action, to which only Rollerteam, and not also Mr. Aidiniantz personally, was a party. The total of the seven bills rendered, of which four related to the Main Action, two to the Possession Action and one to the Riley Action, came to £273,500.17. Of that sum, £237,628.37 related to the Main Action. The total amount of the two bills relating to the Possession Action was £27,593.

Bearing in mind the absolute entitlement of a litigant to have his solicitor's costs assessed under Solicitors Act 1974 s.70(1), provided only that the application was made within one month of the delivery of the bill, it seems to me that it was not a "special circumstance" of the present case, justifying an order for assessment under Solicitors Act 1974 s.70(3), that the litigation to which the bills related was continuing, yet the effect of what was pleaded at paragraph 30(i) of the Re-Amended Defence and Part 20 Claim was to contend that such a circumstance was "special". All that was required, to be able to rely upon the provisions of Solicitors Act 1974 s.70(1) was an application for the assessment desired within the one month period. The actual assessment could take place thereafter at some convenient date. It was perhaps implicit in what was pleaded at paragraph 30(i) that parties to litigation could not reasonably be expected to divert effort to claiming an assessment of a solicitor's bill of costs whilst an action was continuing. However, that, in my judgment, was not a self-evident proposition, and no evidence was led before me which suggested that there were particular circumstances of the present case which demonstrated that it would have been unreasonable to seek assessment whilst the relevant litigation was continuing.

The point pleaded at paragraph 30(i) of the Re-Amended Defence and Part 20 Claim did not seem to be relevant to a decision whether or not to direct assessment of unpaid bills under Solicitors Act 1974 s.70(2).

What was pleaded at paragraph 30(ii) of the Re-Amended Defence and Part 20 Claim amounted to no more than a reprise of the negligence claim with which I have already dealt. It required no further consideration.

The assertion at paragraph 30(iii) of the Re-Amended Defence and Part 20 Claim was not self-evident. Although the court has experience of making summary assessments of costs in freezing order proceedings, it does not have experience of making detailed assessments, such as are made by costs judges. Consequently, in my judgment, to make good the proposition that "the costs claimed are unreasonably high" it was necessary for evidence to be adduced from a costs draftsman, or similarly qualified individual, to the effect that some identifiable element or elements of the costs sought to be assessed was unreasonably high for a limited liability partnership of solicitors providing commercial litigation services and based in Lincoln's Inn. Without such evidence all the court was left with was its own experience, which was an inadequate foundation on which to reach a conclusion as to whether the particular costs sought to be challenged were "unreasonably high".

The matter was further complicated by the bills of which assessment was not sought. The lack of a challenge to those bills indicated that they were considered reasonable for the work done. Those bills, in the instant case, seemed to have been based on hourly charging rates which were the same as those charged in the bills of which assessment was sought. Thus it seemed that there was no challenge to the reasonableness of the hourly charging rates in the bills of which assessment was sought. That was not surprising, given that it had been made clear to Mr. Aidiniantz and his companies from the outset, by the terms of Mr. Gilchrist's e-mail sent at 18.38 hours on 17 December 2012 to Mr. Aidiniantz, and the terms of each letter of engagement, what was the hourly rate of charge of Mr. Gilchrist and what was the hourly rate of charge of Mr. Su. Those rates were presumably considered by Mr. Aidiniantz and his companies to be reasonable at the time Coe was first instructed. Indeed, Mr. Aidiniantz described them as such in his e-mail to Mr. Gilchrist sent at 18.48 hours on 17 December 2012, and subsequently in e-mails to which I have referred. Moreover, even in cross-examination Mr. Aidiniantz accepted that the hourly rates were reasonable.

Mr. Aidiniantz explained his position in relation to the costs of Coe in this passage of his cross-examination [Transcript, Day 4, page 169 line 25 to page 170 line 21 and page 171 line 16 to page 172 line 19]:-

Thus it appeared from those passages that Mr. Aidiniantz did not seek to challenge any disbursements of Coe, or Coe's hourly rates, or the time which Coe had devoted to carrying out his various instructions. Mr. Aidiniantz's grievance was not actually with the various bills as bills, but focused entirely on the allegations of negligence with which I have already dealt.

It was also right to say that it was plain from the volume of paper included in the trial bundles that Mr. Aidiniantz, and through him, his companies, were demanding clients. The bundles contained numerous e-mails from Mr. Aidiniantz to Mr. Gilchrist or to Mr. Su, each of which had to be considered and replied to, and thus could properly be charged for. Mr. Gilchrist estimated that there had been something like 2000 e-mails during the period of the retainer of Coe, which lasted just about three months. Mr. Su also spoke, in his cross-examination, of numerous telephone calls from Mr. Aidiniantz, which again could properly be charged for.

In his written closing submissions Mr. Flenley took account of the evidence of Mr. Aidiniantz as to what he was unhappy about in Coe's bills. At paragraph 21 of the submissions he wrote:-

So far as specifics were concerned, in his written closing submissions Mr. Flenley relied on two points. One was an admission by Mr. Gilchrist in cross-examination that one might expect Coe's bills to be reduced on assessment by 20%. The other was the difference between the charging rates of Mr. Gilchrist and Mr. Su and the guideline rates set out in Guide to the Summary Assessment of Costs 2005 edition, respectively £317 per hour for a Grade A fee earner, as at 2010, and £242 per hour for a Grade B fee earner, again as at 2010.

What I had to decide, in relation to unpaid, or partially-paid, bills of which assessment was sought under Solicitors Act 1974 s.70(2), was whether, in the exercise of my discretion, I should direct assessment of those bills. In relation to the paid bills of which assessment was sought I had to decide whether there were special circumstances which justified directing assessment.

So far as each of those decisions was concerned, an important question had to be whether, if assessment were directed, that would result in any benefit to those seeking assessment. I have already expressed my view that, in order to be satisfied on the question of possible benefit it was appropriate for a costs draftsman, or someone similarly qualified, to have been called to give expert evidence, but that that did not happen. Absent any expert evidence, the views of the client, or client's representative, Mr. Aidiniantz, as to what he was seeking to achieve and how, had to be relevant, pace Mr. Flenley. The guidelines in Guide to the Summary Assessment of Costs 2005 edition, were just that, guidelines. They were not said to have been current in 2013, but in 2010, and related to the summary assessment of costs, which was not the exercise which I was invited to direct. I notice that paragraph 42 of the Guide, in explaining the guidelines, stated:-

It seems to me appropriate for me to recognise that Coe operated at the date of the trial, and operated in 2012 and 2013, in a competitive legal market, and thus that its hourly rates were more likely to be competitive with other practices of a similar size and type of business in Lincoln's Inn and the surrounding areas, than not.

I have already mentioned as relevant to the exercise of my discretion under Solicitors Act 1974 s.70(2) the fact that the client had agreed the amounts of the bills sought to be assessed. In those circumstances, as it seemed to me, in order to persuade me to exercise my discretion in favour of Mr. Aidiniantz, Rollerteam, Museum Ltd. and Holmes Ltd. it was incumbent upon those parties to explain why, having agreed the bills, it was sought to have them assessed. That involved not merely explaining why the bills had been agreed in the first place, but also why, that having been done, they now wished to have them assessed. Or, to put it another way, what did they expect to get out of an assessment, with reasons for any professed advantage, and why had they not chosen to seek that advantage within the time permitted by Solicitors Act 1974 s.70(1), but rather agreed the relevant bills? These questions were not addressed at the trial separately from the points which I have already rehearsed.

Having eschewed as a useful yardstick in assessing the reasonableness of the costs of Coe which it was sought to have assessed the experience of the court, if compelled to express a view I would have said that it was not obvious to me, in the light of my experience in other cases, that the costs charged by Coe were excessive, given the hourly rates of Mr. Gilchrist and Mr. Su, which did not seem unreasonable, and the vast number of e-mails and telephone contacts between Mr. Aidiniantz and Mr. Gilchrist and/or Mr. Su revealed by the evidence.

In the result I was not persuaded that it had been demonstrated that it was appropriate, in the exercise of my discretion under Solicitors Act 1974 s.70(2), to direct assessment of the unpaid, or partially paid, bills of which assessment was sought. The Part 20 Claimants were not entitled to an assessment under that provision simply for asking, yet the submissions of Mr. Flenley in closing came close to that contention. In the end I think that he sought to hold fast upon the rock of Mr. Gilchrist's acceptance in cross-examination that on assessment the proper amounts of the bills might be found to be something of the order of 20% less than the sums claimed. Although that might look an attractive basis upon which to order assessment, there was no evidence, from Mr. Gilchrist or anyone else, of what might be the justification for the reduction of 20% or so. The main elements of each of the bills unpaid, or partially paid, and sought to be assessed were profit costs, disbursements and Value Added Tax. The calculation of the latter was simply a function of calculating the two former elements and applying the rate of the tax, 20%. The proper profit costs were a function of what work was done, by whom, at what hourly rate, whether the hourly rate was appropriate for the work in question, and whether the number of hours expended on each item of work was reasonable. The disbursements were mostly counsel's fees. To which element, or elements, the 20% reduction might apply was obscure.

So far as the paid bills were concerned, I was, in addition, not satisfied that it had been shown that there were "special circumstances" which justified an order for assessment.

In his written closing submissions Mr. Flenley contended, at paragraph 24 that:-

I have already quoted the passage from the judgment of Evans LJ in Turner & Co. v. O. Palomo SA at page 40 of the report. At page 50 he said, so far as is presently relevant, having referred to some observations of Lord Lowry:-

It was, I think, important to notice that the mechanism at common law by which a client who wished to have the costs of his solicitor which the solicitor had deducted from money of the client which the solicitor was holding assessed was different from the mechanism to be adopted where the client sought to challenge the amounts of unpaid bills. In relation to unpaid bills the client simply resisted a claim for payment by the solicitor on the ground that the fees claimed were excessive, and that placed the burden on the solicitor, in order to prove his claim, of demonstrating that the fees were reasonable. However, where what was sought to be challenged at common law was the amount of a bill which the solicitor had paid himself out of money held for the client, what the client had to do was to claim from the solicitor the amount which the solicitor was holding for him, or so much thereof as he contended that the solicitor was not entitled to retain. The mechanism was not simply a claim for assessment. In the present case there was no claim by any of the Part 20 Claimants against Coe for repayment of any amount which Coe was said to be holding for that Claimant. On that ground alone, as it seemed to me, Mr. Flenley's submission was unsound.

However, in a case, such as the present, in which monies had been paid on account to the solicitor, and, after that had happened, the solicitor claimed further sums from the client which the client agreed to pay, it seemed to me that, by agreeing to pay the further sums, the client also agreed that the sums paid on account had been properly allocated to costs otherwise due to the solicitor. In other words, the amounts of the paid bills were agreed as correct, and therefore not challengeable at common law.

I come, finally, to the indemnity relied upon on behalf of Coe.

What was pleaded about it in the Re-Amended Defence and Part 20 Claim was obscure. It was:-

It did not appear that it was suggested that the letter relied upon had not been provided by Mr. Aidiniantz or had not been signed by him. The nature of the case relied upon at trial was explained by Mr. Flenley in his written skeleton argument at paragraphs 49 and 50:-

I think that it was clear at the trial that Mr. Flenley had misunderstood the nature of Coe's case concerning the indemnity. That case was, simply, that, by reason of having given the indemnity, Mr. Aidiniantz personally was liable jointly and severally with Rollerteam for payment of the fees which Rollerteam was bound to pay to Coe. It was not suggested that the effect of the indemnity was that Mr. Aidiniantz or Rollerteam had forgone any right to assessment under Solicitors Act 1974 s.70, if otherwise there was such a right. I have already considered the case of Coe that, actually, Mr. Aidiniantz, Rollerteam, Museum Ltd. and Holmes Ltd. had forgone any right to assessment, and that had nothing to do with the giving of the indemnity.

From his skeleton argument it appeared that Mr. Flenley accepted that the indemnity had been given, and was effective as an indemnity. However, he raised a question of construction, namely whether the indemnity related only to work done in connection with the Riley Action, or was, as Coe contended, not limited to any particular action, and, importantly, also applied to the Main Action. The indemnity, in terms, related to "instructions given to you by Rollerteam Ltd pursuant to the company resolution passed on 4^th January 2013". I have already quoted that resolution. On its face it applied to instructions "to represent the company in the claim against L Riley et al and in any other legal matters pursuant to recovering any debts owed to the company or enforcing our legal rights howsoever arising". That form of wording, in my judgment, was more than adequate to cover not only costs incurred in relation to the conduct of the Riley Action, but also costs incurred in relation to the Main Action.

In the result there will be judgment for Coe against Mr. Aidiniantz in the sum of £103,300.17, together with interest. In closing submissions there was agreement that interest should be awarded on any sum found to be due at 2 per cent per annum. It seems to me that interest should be calculated as from 15 March 2013 to the date upon which this judgment is handed down. I leave it to counsel to undertake the necessary calculation. In addition there will be judgment against Rollerteam in the sum of £75,907.17, again together with interest at 2 per cent per annum from 15 March 2013 until the date upon which this judgment is handed down. The Part 20 Claim fails and is dismissed.