Chamberlain v Boodle & King (Note)

JurisdictionEngland & Wales
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE DUNN,LORD JUSTICE O'CONNOR
Judgment Date31 March 1981
Judgment citation (vLex)[1981] EWCA Civ J0331-5
CourtCourt of Appeal (Civil Division)
Docket Number81/0222
Date31 March 1981
Bartlett Beardslee Chamberlain III
Plaintiff (Respondent)
and
Boodle & King (Sued as a Firm)
Defendants (Appellants)

[1981] EWCA Civ J0331-5

Before:

The Master of The Rolls

(Lord Denning)

Lord Justice Dunn and

Lord Justice O'connor

81/0222

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

(MR. JUSTICE SMITH)

Royal Courts of Justice.

MR. J. HIRST (instructed by Messrs. Middleton Potts & Co.) appeared on "behalf of the Plaintiff (Respondent).

MR. N. STRAUSS (instructed by Messrs. Boodle & King) appeared on behalf of the Defendants (Appellants).

1

THE MASTER OF THE ROLLS
2

This is an unusual case. It is in regard to a solicitor's bill of costs. The first question which arises is as to whether there was a contentious business agreement between the parties such as to satisfy section 59 of the. Solicitors Act 1974. If it was a contentious business agreement, the client has no right to have the bill taxed. He can complain afterwards that it is not fair and reasonable. If it were held not to be fair and reasonable, then it could be set aside and he could have it taxed. But if it were a contentious business agreement, the immediate effect is that he has no right to taxation.

3

The matter arises in this way: At the end of November 1978 a gentleman living in New Orleans—who goes by the picturesque name of Bartlett Beardslee Chamberlain III—was in dispute with a Mr. Peter Fitzgerald and other persons. There was litigation in the United States of America and this country. Mr. Chamberlain instructed the firm of Messrs. Boodle & King in regard to the English proceedings. In particular he instructed Mr. Joseph Jaworski, an employee of Messrs. Boodle & King. Their practice is at 22 Grosvenor Square.

4

Some work was done in December 1978. Then letters passed between the parties, which I shall read: because it is upon the true effect of them that the whole case depends. But, before I read them, I will read section 59 of the Act:

5

"…a solicitor may make an agreement in writing with his client as to his remuneration in respect of any contentious business done, or to be done, by him…providing that he shall be remunerated by a gross sum, or by a salary, or otherwise, and whether at a higher or lower rate than that at which he would otherwise have been entitled to be remunerated". At the same time, I will mention section 60, which says:

6

"…the costs of a solicitor in any case where a contentious business agreement has been made shall not be subject to taxation…"

7

I now come to the two letters which are said by the solicitors to amount to a contentious business agreement. The first is dated the 4th January, 1979. It is from Messrs. Boodle & King to Mr. Bart Chamberlain:

8

"Boodle & King will bill you for its services rendered on the basis of the standard hourly rates applicable to the particular attorneys or solicitors involved in the litigation. These rates range from £60 to £80 per hour for lawyers of partner status and from £30 to £45 per hour for associates who may be involved. These standard rates are reviewed for adjustment on a regular basis, ordinarily at the conclusion of the firm's fiscal year.

9

"Statements will be rendered by the firm to you on a regular basis, either monthly or quarterly, depending upon the activity generated during the applicable period.

10

"At this time we would appreciate your sending to us a check ( sic) representing a retainer in the amount of £2,000 in accordance with our prior telephone conversation. This will be treated as an advance payment; our fees in accordance with the foregoing schedule will be applied against this retainer. We would appreciate your always remitting to us in pounds sterling if that is convenient".

11

Mr. Bart Chamberlain replied on the 24th January, 1979 from New Orleans:

12

"I enclose a bank check for one thousand pounds sterling; this represents one half of the retainer payment you have requested. We will remit the balance within two weeks. There are several large drafts in the mails to us, but I decided to forward this partial payment now so that you would have cash from us to pay some of the out of pocket costs incurred in the Peter Fitzgerald matter".

13

That really is the substance of the agreement. To complete the story—which is really a very short one—I should say that bills were sent to Mr. Chamberlain. The first was dated the 19th February, 1979. It totalled £2,373.36, less paid on account £1,000, which came to £1,373.36. The second was dated the 20th March, 1979, which came to a total of £12,041.58. That brought in the balance from the account rendered. The third was dated the 30th April, 1979, which brought the total up to £17,523.68. I should add that, before the final bill was delivered, all the litigation had been settled—rather to the surprise of the parties. There was no further litigation. That had finished by the 8th May. Then the final bill was sent on the 11th May. "Received on account" was now £3,427.35. But the total bill came to £30,099.49.

14

It is those bills which Mr. Chamberlain claims should be taxed. But the solicitors say that he has no right to have them taxed: because there had been an agreement in writing.

15

Before I conclude the story, I may say that Mr. Chamberlain was not at all polite to the solicitors about the matter. He wrote a letter saying:

16

"…the various attorneys and their minions are no doubt wringing their hands in collective disgust now that new fees and costs will not be incurred through their arcane efforts".

17

That ends the story. I turn to the question which is at the root of this case: Was this a contentious business agreement in writing?

18

Going back to the first Act of 1870, I should like to say that, to satisfy its terms, the agreement should be clear and represent an agreement in writing by both parties to the whole of its terms. In, Re Raven, ex parte Pitt (1881) Law Times 742, Mr. Justice Fry said:

19

"The words of the Act are 'an agreement in writing.' What is an agreement in writing? It must be a document which shall show all the terms of the bargain between the parties, and show by writing the accession of both parties to those terms". To that I would add the subsequent case of Pontifex v. Farnham (1892) 62 Law Times 344.

20

It seems to me that an agreement in writing can be contained in letters....

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2 books & journal articles
  • Legal Profession
    • Singapore
    • Singapore Academy of Law Annual Review No. 2004, December 2004
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    ...and all the partners, it would have stated this expressly. Still further, it was implicit in the holding in Chamberlain v Boodle & King[1982] 1 WLR 1443, a leading English case on the enforceability of an agreed costs retainer, that such an agreement may indeed be made between all the partn......
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