Danny John Anthony v Karen Collins
| Jurisdiction | England & Wales |
| Judge | Master Friston |
| Judgment Date | 27 January 2020 |
| Neutral Citation | [2020] EWHC B15 (Costs) |
| Date | 27 January 2020 |
| Docket Number | SCCO Ref: 1806557 |
| Court | Senior Court Costs Office |
[2020] EWHC B15 (Costs)
SENIOR COURTS COSTS OFFICE
Royal Courts of Justice
Strand, London, WC2A 2LL
DEPUTY Master Friston
SCCO Ref: 1806557
Mr Matthew Smith (instructed by Contested Wills and Probate Lawyers Ltd) for the Claimant
Mr Andrew Hogan (instructed by Morgan Phelps Ltd for the Defendant)
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.
DEPUTY Master Friston
Introduction
This is a detailed assessment of the Claimant's costs. I must decide whether the costs are claimed in breach of the indemnity principle, this being in the context of the Claimant's contracts of retainer being noticeably prolix and opaque. I must also decide whether I should impose a sanction pursuant to CPR, r 44.11 for the way in which the Claimant has presented his case.
Facts
The Claimant is a self-employed taxi driver. On about 11 September 2014, his father, who was in hospital at the time suffering from a serious illness, attempted to make a will using an on-line will-making service. A few days later—on 19 September 2014—he succumbed to his illness. He owned a long lease on property in north London (‘the Property’), that lease having been purchased in 2003 under the right to buy legislation.
The Defendant was his long-term partner. She had moved into the Property about 30 years ago whilst it was still being rented from the local authority. In more recent times she had taken up residence elsewhere, but she continued to hold the keys to the Property and kept certain possessions there, so to that extent at least, she continued to be in occupation.
The Claimant believed that his father's purported will may have been unfavourable to him, so on about 19 February 2015, he instructed Contested Wills and Probate Lawyers Limited (‘the Solicitors’). The principal of that firm is a Mr Terence Johansson, a solicitor who practises internationally; he first qualified as a solicitor in Victoria, but was admitted to the Roll in this jurisdiction in 2003. In his oral evidence, he told me that he manages firms in London, Dubai and in several territories in Australia, and that all of those firms specialise in wills and probate.
About 95 percent of the work the Solicitors do in this jurisdiction is funded by way of conditional fee agreements. I was taken to the Solicitors' website, which explains its ethos in the following way:
‘Many claimants find the traditional Lawyer's fee agreement is too focussed on the fees and not enough on the service. It is usually written in complex language, so the claimant never really knows what their lawyer will do for his money. CWPL is not a traditional law firm. Before we start any application in court for you, we disclose what fee range we expect our fees to fall within. Then, in our [documentation] we clearly disclose how our fees will be charged …’
On 10 March 2015, the Claimant entered into a conditional fee agreement with the Solicitors (‘the First Agreement’). Mr Johansson had responsibility for drafting that agreement. I will describe it later in this judgment, but for the moment, I will confine myself to saying that at the time it was made, not a great deal was known of the nature of the task in hand. Indeed, it was not known whether the Claimant's father had made a valid will. In view of this, the First Agreement made no specific mention of the Defendant, but instead focussed on the position as between the Claimant and his father's estate.
The day-to-day work of dealing with the Claimant was carried out by a Ms Larissa Wilson, a solicitor who was admitted to the Roll in 2007. She too gave oral evidence. She told me that she had extensive pre-qualification experience, largely in personal injury litigation. Ms Wilson was supervised by Mr Johansson, although most of that supervision was carried out whilst he was in Australia.
On 19 April 2016, the Defendant's then solicitors wrote to the Solicitors to tell them that, in their view, the Claimant's father's will had not been validly executed. As a result, it was not in dispute that the Claimant's father had died intestate. That letter went on to say that the Defendant had resided at the Property for many years, that she had a beneficial interest in it, and that she intended to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
The Claimant entered into a further conditional fee agreement (‘the Second Agreement), this being on about 2 May 2016. In essence, that agreement was for the purposes of securing either grant of probate or letters of administration.
On 27 January 2017, the Claimant wrote to the Defendant to challenge the factual basis of her claim. The Claimant disputed the fact that the Defendant had been in a committed relationship with the Claimant's father at the time of his death. He also said that the Defendant lived and worked in Birmingham and that she owned several investment properties in that area (the implication being that she did not reside at the Property even if she did have access to it). The Claimant asked the Defendant to vacate the Property. As I understand matters, the Defendant did not respond to that letter. The Claimant wrote again on 5 June 2017; this elicited a response by way of an email dated 20 June 2017, by which the Defendant refused to vacate the Property.
In the meantime, letters of administration had been granted (this being on 31 May 2017); the Claimant was named administrator of the estate. This meant that the Property (which was the only substantial asset in the estate) devolved to the Claimant as personal representative. As he was his father's only child, the Claimant potentially held the Property on statutory trust for himself. I understand that the net value of the estate was thought to be just under £400,000.
Possession proceedings were issued on 3 July 2017. On 3 August 2017, a Defence was filed. In essence, the Defendant contended that when the Claimant's father purchased the Property, this was done jointly and with her financial assistance. Amongst other things, the Defendant counterclaimed for a declaration under section 14 of the Trusts of Land and Appointment of Trustees Act 1996.
At this juncture, no separate contract of retainer had been made in respect of the possession proceedings. On 17 July 2017, the Solicitors wrote to the Claimant purportedly to vary the terms of the conditional fee agreement relating to those proceedings, but this was done in ignorance of the fact that no such agreement had been made. The Solicitors realised their error, so on 20 October 2017 a further conditional fee agreement (‘the Third Agreement’) was made. I pause here to note that the Solicitors were already providing legal services in the possession proceedings, and that this was on the basis that their remuneration would be conditional upon success in those proceedings. As such, the purpose of the Third Agreement was to regularise an already existing arrangement.
On 4 January 2018, the claim was allocated to the multi-track. The Claimant made an application to strike out the counterclaim for want of compliance with certain directions, that being on 26 January 2018. The court gave further directions, but on 7 June 2018, the parties reached a compromise (which essentially was a capitulation on the part of the Defendant). The Defendant agreed to pay costs on the indemnity basis.
The costs proceedings
On 13 July 2018, the Claimant served a Bill of Costs for £56,904 (inclusive of VAT). This related solely to the possession proceedings (including the counterclaim). The narrative to that Bill of Costs described the contractual arrangements between the Claimant and the Solicitors in the following way:
‘The matter was conducted by Larissa Wilson, a senior Grade A Solicitor, under a private retainer providing for a charging rate.’
This was wrong: there had been no private retainer of any kind. Notwithstanding this, Ms Wilson certified the Bill of Costs both as to accuracy and the indemnity principle. In her oral evidence, Ms Wilson accepted that this was an error. The narrative had been drafted by a Mr Brian Varney, an experienced costs consultant, but it seems that he had not been given access to the documents that would have allowed him to draft it accurately.
On 9 August 2018, the Defendant served Points of Dispute. The Defendant pointed to the fact the Claimant was of limited means and went on to say that it was inherently unlikely that he would have instructed the Solicitors on a private client basis. The Defendant also pointed to evidence served in support of the Bill of Costs that implied that the Claimant's solicitors had, in truth, been instructed under a conditional fee agreement. As such, the Defendant said—entirely rightly, in my view—that a ‘genuine issue’ had been made out, and that as such, the Claimant ought to be put to his election. The Defendant requested voluntary disclosure of the retainer documentation.
In the Replies to the Points of Dispute dated 17 August 2018, the Claimant responded in this way:
‘The Defendant has the information to which she is entitled in the bill and by the signed certificate [sic]. Any further funding information will be seen by the Costs Judge on assessment.’
This too was wrong (a fact that Ms Wilson accepted in evidence).
On 28 August 2018, the Defendant's costs draftsmen wrote to the Solicitors to reiterate their concerns and to ask the following question: ‘Was the Claimant represented pursuant to either a Conditional Fee Agreement or a Contingent Fee Agreement?’ Again, disclosure of the documentation was sought. That request was passed to Mr Varney, who responded on 29...
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