Ashford Borough Council (for and on behalf of itself, its current and former officers, employees, councillors and agents) v Mr Fergus Wilson

Hearing dates: 1 and 2 February 2021

APPROVED JUDGMENT

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Darryl Allen QC

This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30am on 5 May 2022.

Mr Darryl Allen QC:

Background

This judgment deals with the issue of costs. It follows my substantive judgment in these proceedings which was handed down on 22 ^nd September 2021 [ Ashford Borough Council and Another v Wilson [2021] EWHC 2542 (QB)]. The background to the proceedings and the relief granted to the Claimants are set out in that judgment. In summary, the Claimants obtained a final injunction restraining the Defendant from harassing the Claimants and those that they represent in these proceedings. The Claimants succeeded on all issues.

At trial, the Claimants were represented by Mr Adam Solomon QC and Mr Samuel Davis. The Defendant was represented by Mr Alexander Deakin who was instructed under the Direct Access Scheme.

As is routine practice with reserved judgments, on 10 ^th September 2021, a draft judgment was circulated to all parties inviting them to identify typing corrections or any other obvious errors. At the same time they were asked to agree an order, including an order for costs, in the light of my findings. The draft judgment and my request for an agreed order were sent to all counsel, including Mr Deakin. At that stage there was no suggestion whatsoever that Mr Deakin was no longer instructed by or authorised to represent the Defendant.

On 15 ^th September 2021, I received an email from Mr Davis, junior counsel for the Claimants, with a list of suggested corrections and a proposed draft order which he said the Claimants were seeking to agree with the Defendant. Mr Deakin, specifically identified as “ counsel for the Defendant”, was copied to that email.

Later on 15 ^th September 2021, I received a second email from Mr Davis, again copied to Mr Deakin. That email stated,

“ I can now confirm that the parties have agreed the attached final injunction and the final costs order in this matter. I have attached an email from Mr Deakin, counsel for the Defendant, confirming his agreement.”

The final orders were attached as was the email from Mr Deakin to Mr Davis dated 15 ^th September 2021, in which Mr Deakin stated,

“As discussed on the phone just now. These are agreed.”

“ These” refers to the two proposed orders which had been sent by Mr Davis to Mr Deakin.

Whilst it is clear from Mr Deakin's email that as at 15 ^th September 2021 he was employed DWF Advocacy Ltd, he was still identified as a barrister and there was no suggestion whatsoever that he was not instructed by the Defendant, that he was not authorised to agree orders with the Claimants or that he did not have instructions to agree the orders which the Claimants had in fact proposed.

Accordingly, as at 15 ^th September 2021, counsel for both parties had agreed the terms of the final injunction and the final costs order.

The costs order which had been agreed by Mr Davis and Mr Deakin provided that the Defendant was to pay the Claimants' costs of the action, including the costs of various interlocutory hearings, on the standard basis up to 26 ^th September 2020, and on the indemnity basis thereafter. The reason for the indemnity costs order was, as set out in the recital to the draft order, that the Claimants had obtained a judgment which was equal to or more advantageous than the terms of a Part 36 Offer they had made in writing on 4 ^th September 2020. The proposed costs order also dealt with interest on costs, additional interest on costs and a payment on account of costs in the sum of £125,000.

On 20 ^th September 2021, I received an email from Mr Deakin in which he stated,

“ I have recently been contacted by Fergus Wilson (Defendant) who has informed me that I am no longer instructed and he does not agree to the order in respect of costs on account.

I am without further instructions and unfortunately cannot add more.”

At that stage it appeared that the only part of the draft costs order to which the Defendant objected was the proposed payment on account of costs. In a subsequent email Mr Deakin clarified his understanding of the Defendant's position,

“ My understanding is that he disagrees with both the principle and the amount [of the payment on account].

In terms of the rest of the costs order, he is aware of the implications of Part 36 offers, and he hasn't raised an objection to it to me.”

At my request, the Defendant was asked to confirm which parts of the draft costs order he agreed and which parts he did not agree. By email dated 20 ^th September 2021, he informed the Claimants that,

“ I would like the issue of costs dealt with by the Judge at the Royal Courts of Justice in person.”

By a letter dated 20 ^th September 2021, addressed to Mr Mortimer, the First Claimant's Director of Law and Governance, the Defendant wrote,

“ I would point out that Mr Deakin ceased to be my Barrister on 30 ^th April 2021 when he walked out on Stour Chambers. All outstanding files etc were collected from Stour Chambers some time later. The fees were returned on 11 ^th June 2021. Hence when you say ‘Your Barrister’ that is not actually the case.

I do dispute all seven points of the [costs] Order.

I do not believe there should be any Order for costs and I wish the opportunity to address the Judge in Person at the High Court. This matter could and should have been dealt with by an Application to the County Court at a cost of under £2,000.

…. ….

I turn to your second page where you say you do not accept that I am able to withdraw the agreement given by my barrister! Well, he was not my barrister after 30 ^th April, 2021. He was not instructed! I think he should simply have said ‘I am no longer instructed.’”

In light of the fact that the Defendant disputed the proposed costs order, contending that Mr Deakin never had authority to agree the terms of that order, I directed that the parties were to file written submissions and any documentary evidence upon which they wished to rely in order for me to determine the following issues:

i) Whether a costs order had been agreed?

ii) If so, were the parties, in particular the Defendant, bound by it?

iii) If not, what order for costs should be made?

I will now deal with those issues.

(1) Had a costs order been agreed?

Plainly the answer to that question is yes. Mr Davis and Mr Deakin had agreed a proposed order for costs on 15 ^th September 2021. The agreed order was emailed to me to be sealed and issued. It is clear from Mr Deakin's emails that the order had been agreed by him. The real issue is whether the Defendant is bound by that agreement.

(2) Are the parties, in particular the Defendant, bound by the terms of the agreed order?

The Defendant has provided written submissions. They do not address this issue. The Defendant has not provided any evidence that Mr Deakin was no longer instructed by him as at 15 ^th September 2021. He has provided no evidence that he terminated Mr Deakin's Direct Access instructions/retainer prior to 15 ^th September 2021.

The high point of the Defendant's position is set out in his letter to Mr Mortimer dated 20 ^th September 2021, quoted above. In essence, the Defendant considers that Mr Deakin was no longer “ his barrister” after he left his Chambers at the end of April 2021.

The Defendant equates Mr Deakin leaving his Chambers to take up a position as an employed barrister to terminating the Direct Access instructions. That does not follow. There is no evidence that the Direct Access agreement provided that the instructions would be terminated in the event that Mr Deakin left his Chambers. There is no evidence that the Defendant terminated Mr Deakin's instructions. There is certainly no evidence that Mr Deakin considered his instructions to have been terminated. Indeed, his participation in agreeing a list of typographical corrections and the draft orders demonstrates that he considered himself still instructed to represent the Defendant.

A brief to represent a client at a hearing includes receiving the judgment and drafting/agreeing any orders that flow from it. Mr Deakin's instructions/retainer extended to considering the judgment and agreeing the orders that flowed from it in this case. I have no doubt that the Defendant would have been the first to complain had Mr Deakin ignored the Court's requests for an agreed list of corrections and agreed orders.

Importantly, there is no suggestion or evidence that the Defendant notified the Claimants that Mr Deakin was no longer instructed, prior to sending his letter of 20 ^th September 2021. As far as the Claimants were concerned, Mr Deakin was still instructed to represent the Defendant: all of his actions dealing with the judgment and the list of corrections, and discussing the draft orders were entirely consistent with that being the case; his email...