Boyd & Hutchinson (A Firm) v Johan Michael Richard Foenander
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE POTTER,LORD JUSTICE AULD,LORD JUSTICE CHADWICK |
| Judgment Date | 23 October 2003 |
| Neutral Citation | [2002] EWCA Civ 1168,[2003] EWCA Civ 1516 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | A2/2002/0894 |
| Date | 23 October 2003 |
[2002] EWCA Civ 1168
Lord Justice Potter
IN THE SUPREME COURT OF JUDICATURE A2/02/0894, A2/02/0723
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr Justice Buckley)
THE APPLICANT (assisted by Miss Eva Adshead, litigation friend) appeared in Person.
There are before me two applications for permission to appeal arising out of litigation between the applicant and his former solicitors. They arise in this way. In 1996 the solicitors issued a High Court writ against the applicant claiming £4,200-odd under bills rendered for work done as his solicitors in relation to an ancillary relief dispute. The applicant was dissatisfied with the services rendered, but that is not a matter with which I am concerned on this application. I shall call that action by the solicitors the "invoice action". The solicitors obtained judgment by default which was set aside on the applicant's application, the action being transferred to the Lambeth County Court.
There was an appeal to the judge who ordered an adjournment for service of the applicant's objections to the bills. At the adjourned hearing on 2nd December 1996 the judgment was reinstated subject to assessment of the bills, and the applicant was ordered to pay the solicitors' costs of the whole action, including the costs of appeal. In December 1997 the bills of costs (the subject of the invoice action) were assessed at £3,173-odd. It appears that a charging order, dated 17th December 1997, was obtained, in form covering the judgment debt of £3,173 plus the costs of the enforcement proceedings.
I pause there because there is something of a mystery attached to the terms of the charging order in relation to costs. There is in the bundle one form of the order (page 19 of the large bundle before me) which refers to the assets specified in the schedule standing charged with the payment of £3,173.91, the amount due from the defendant to the plaintiff on an order of the High Court/County Court (sic) dated 12th December 1994, together with any interest, and £3,754.87, the costs of the application, to be added to the judgment debt.
That, according to the applicant or at any rate according to Miss Adshead, who acted on his behalf as his litigation friend, is the order which was relied on in the proceedings by the solicitors until a very late stage. However, it does not seem that an order could have been made in that form because, as at 17th December 1997, the costs of the application had not yet been assessed. [They were eventually assessed in October 1998, one year later, in the sum of £3,754.87, making a total covered by the charging order of something over £6,900.] That order bears the stamp of the Lambeth County Court. It has been a major complaint on the part of the applicant, and a matter of justifiable suspicion, that later in the proceedings, and certainly before Master Turner, a different form of charging order dated 17th December 1997, not bearing the stamp of the Lambeth County Court, was suddenly produced and relied on by the solicitors. The text of that order accorded with the position which must or at any rate could have existed at 17th December 1997, in that it referred to a charge of "£3,173.91, the amount due from the defendant to the plaintiff on an order of this court dated 23rd April 1996"—note the different day of judgment specified—"said interest being 73% of the beneficial value of the property", and then at item 2 ordered that the costs be paid by the applicant/defendant on scale 2 to be taxed if not agreed.
In the event, having commented upon that matter it appears to have been a matter which the applicant or Miss Adshead were unable to articulate before the Master and Judge, or at any rate were unable to arouse their interest in that respect. Although that is a matter of some concern, it is not a matter directly before me on this application, in the sense that this application is concerned with the compromise which was undoubtedly reached in relation to proceedings taken later under the charging order obtained.
In October 1999 the solicitors applied to enforce that charging order in the sum of just over £6,900 plus interest by selling the property. In November 1999, when the hearing of that application was imminent, the proceedings for sale of the property were compromised on the basis of an agreement that the applicant would pay £6,900 by 23rd November 1999 in agreed instalments. That payment was subsequently made. At the time the solicitors applied to enforce the charging order, well before the compromise that I have mentioned was reached, the solicitors had obtained an assessment of their High Court costs in the invoice action pursuant to the order made on 23rd October 1996. The sum assessed was £5,300-odd. Again, it is a matter of complaint and concern on the part of the applicant that, according to him, he never had notice of that assessment and thus was only aware of any sum alleged to be owing or outstanding under the costs order made in October 1996 at a very late stage. At any rate, the solicitors plainly made no effort at the time they obtained the assessment to bring it to the applicant's attention or to enforce payment. They simply proceeded with enforcement of the charging order which they already had, biding their time in relation to the £5,300-odd of their costs in the substantive action.
The compromise agreement reached on the eve of the enforcement hearing was negotiated for the applicant by solicitors recently instructed, Landau & Scanlon ("Landaus"). At the time of the negotiation the solicitor concerned, Mr. De Cruz, was unaware of the outstanding invoice action costs of £5,300, and it seems that he believed that he was simply negotiating the sum to be paid to settle the proceedings for sale under the charging order. In fact, the £6,900 sum payable by instalments, which was secured as the settlement sum, did represent a significant reduction of the sum by then due under the charging order, which with interest of some £1,100 due to be added, totalled £8,000, with a future likely liability on the applicant for more costs if the matter proceeded to a hearing without agreement. The letter confirming the compromise, which was written by Mr. De Cruz to the solicitors, read as follows. It was headed:
" Yourselves v Foenander. Hearing—23rd November 1999
We write further to our various telephone conversations today to confirm that agreement has been reached in settling the outstanding amount owed to you on the following basis. Upon such agreement being reached we agree to an adjournment of the hearing tomorrow with liberty to restore. The agreement is based on the amount said to be due today under the terms of a charging order absolute obtained by you against our client on 17th December 1997."
The instalments and other terms of payment were set out. The final paragraph read:
"Therefore, by payment of the total sum of £6,900 as indicated above, our client will discharge all liabilities due to you, including any orders for costs and interest in the above mentioned proceedings. We are grateful that you will attend court tomorrow to indicate to the district judge that agreement has been reached on that basis."[emphasis added]
There was a postscript in manuscript:
"This agreement is made on the assumption that no monies have been paid to you since 17th December 1997 and therefore that at that date the sum of £6,928.78 plus interest was due and owing. You also agreed to secure the removal of the caution registered in your favour upon payment of the £6,900."
The solicitors meanwhile continued to keep up their sleeve their claim for £5,300 assessed costs of the invoice action until payment had been received under the compromise. Once that was received, they requested payment of the further assessed costs and, when payment was not forthcoming, they applied for another charging order in respect of that sum, the precise sum being £5,333.57 which was contained in a charging order nisi obtained by the solicitors ex parte on 17th October 2000.
Payment was resisted by the applicant on a number of grounds. When the matter came on for hearing in relation to the making of the charging order final, it came before Master Turner. He was concerned in particular, (a) that there might be an element of duplication between the sums already the subject of the compromise and paid under the charging order on the one hand, and (b) the invoice action costs of £5,300 on the other. He was also concerned that, in any event, on a proper construction of the compromise, it might be said to extend to the invoice action costs as part of "all liabilities due" to the solicitors.
However, having adjourned the matter to enable preparation of the parties' case on that issue, he later considered the matter on the basis of papers placed before him and satisfied himself that neither was the case. He gave judgment to that effect on 23rd January 2001 and rendered the charging order nisi previously granted absolute. He refused permission to appeal. However, permission was subsequently granted on 20th March 2002 by Buckley J, limited to the question whether the compromise of the charging order proceedings was a global compromise which included the applicant's liability for the solicitors' costs in the invoice action of £5,300-odd.
I have before me now the lengthy and careful ex tempore judgment of Buckley J dated 12th April 2000 when, having heard the applicant's appeal on the point, he...
To continue reading
Request your trial
-
Rupert St John Webster v John Francis Penley
...Rules provide otherwise, the court may— […] (b) adjourn or bring forward a hearing; …” 23 In Boyd & Hutchinson (A Firm) v Foenander [2003] EWCA Civ 1516, Lord Justice Chadwick (with whom the other member of the court, Lord Justice Auld, agreed) said this: “9. … in deciding whether or not t......
-
Dadourian Group International Ltd Inc. and Others v Simms and Others (No. 1)
...exclusive province of the official receiver as receiver of the estate. 14 More generally, it can be seen from the decision in Boyd & Hutchinson (a firm) v Foenander [2003] EWCA Civ 1516, that even in a case where a trustee in bankruptcy has been appointed, the bankrupt himself is not altog......
-
Ventra Investments Ltd (in creditors' voluntary liquidation) v Bank of Scotland Plc
...jeopardising the present trial date, I must take that factor into account. 43 As Chadwick LJ stated in Boyd & Hutchinson v Foenander [2003] EWCA Civ 1516, [2004] BPIR 20 at [9]: .. in deciding whether or not to grant an adjournment, the court must have regard to the overriding objective o......
-
Fitzroy Robinson Ltd v Mentmore Towers Ltd & Others
...objective ( CPR Part 1.1), the notes in the White Book at paragraph 3.1.3, and the decision of the Court of Appeal in Boyd and Hutchinson (A Firm) v Foenander [2003] EWCA Civ 1516. Thus, the court must ensure that the parties are on an equal footing; that the case — in particular, here, th......