Dr Mehrdad Rahimian and Another v Allan Janes LLP
| Jurisdiction | England & Wales |
| Judge | Master Gordon-Saker |
| Judgment Date | 04 August 2016 |
| Neutral Citation | [2016] EWHC B18 (Costs) |
| Docket Number | Case No: AGS 1600903 |
| Court | Senior Court Costs Office |
| Date | 04 August 2016 |
[2016] EWHC B18 (Costs)
IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE
Royal Courts of Justice
London, WC1A 2LL
Master Gordon-Saker
Case No: AGS 1600903
Mr Robin Dunne (instructed by Deep Blue Costs) for the Claimants
Mr Nicholas Cropp (instructed by Allan Janes LLP) for the Defendants
Hearing dates: 21st June 2016
Judgment Approved
By Part 8 proceedings commenced on 12 th February 2016 the Claimants seek an order pursuant to section 68 Solicitors Act 1974 that the Defendants, a firm of solicitors in High Wycombe, deliver to them a final statute bill or bills in relation to proceedings brought against the Claimants by Ottercroft Limited.
Section 68 provides:
(1) The jurisdiction of the High Court to make orders for the delivery by a solicitor of a bill of costs, and for the delivery up of, or otherwise in relation to, any documents in his possession, custody or power, is hereby declared to extend to cases in which no business has been done by him in the High Court.
The background
The First Claimant, Dr Rahimian, is a director of and shareholder in the Second Claimant. On 8 th September 2011 Dr Rahimian consulted the Defendants in relation to a claim issued in the Central London County Court against the Claimants. The claim involved allegations of trespass and infringement of a right to light arising out of the redevelopment of a property in High Wycombe [see ( Ottercroft Ltd v (1) Scandia Care Ltd (2) Rahimian CA unrep. 6 July 2016)]. On 15 th September 2011 the Defendants wrote to the Claimants recording the advice that had been given and the terms of the retainer. In relation to the terms, the letter was surprisingly succinct, setting out only the hourly rate to be charged by the author and an estimate of the costs of the action. The estimate was "between £15,000 and £25,000 plus VAT and disbursements". An application by the opponent for an interim injunction might add "costs of between £5,000 and £10,000 plus VAT".
On 30 th September 2011 the Defendants submitted their first invoice to the Second Claimant, numbered 153059, in the sum of £5,220.40. It was explained in the invoice that it was:
Re: Claim by Ottercroft Limited – Interim account for the work undertaken on your behalf in respect of this matter to the date hereof.
There was no further indication in that invoice as to what work had been done. A further 20 similar invoices were sent to the Second Claimant at irregular intervals, although largely monthly, until 22 nd July 2014 when invoice number 158270 in the sum of £2,073.60 was sent. It was explained in that last invoice that it was:
Re: Claim by Ottercroft Limited – Final Account for the work undertaken on your behalf in respect of this matter to the date hereof.
The only difference of significance between this and the earlier invoices was that it was expressed to be "Final" rather than "Interim".
It is common ground that of the 22 invoices, as exhibited at RCH1 to the first statement of Mr Harriman on behalf of the Defendants dated 9 th May 2016, only the last 3 contained or were accompanied by a narrative explaining the work that had been done in the period covered by the invoice (30 th May 2014, 30 th June 2014 and 22 nd July 2014). So, as at 22 nd July 2014, the Claimants were provided with a detailed description of the work that had been done from 1 st March 2014 to 22 nd July 2014. They had no description of the work that had been done from 8 th September 2011 to 28 th February 2014.
A number of the invoices were accompanied by statements of account. The last, dated 22 nd July 2014 is a curious document because, although it appears to list all 22 invoices, only the last 3 are legible wherever this document had been reproduced in the evidence available at the hearing. It does show that the total invoiced was £76,153.14 of which the Claimants had then paid £50,491.34. I have not checked the accuracy of the mathematics. It is not in issue that the Claimants have since paid the balance of £25,661.80.
During the hearing an issue arose as to whether the invoices had been signed on behalf of the Defendants. That could not be answered at the hearing and I asked that it be addressed after the hearing. The second statement of Mr Harriman, dated 6 th July 2016, exhibits signed copies of the invoices and also the first legible copy of the statement of account.
The termination of the Claimants' retainer came about as the result of emails passing between the parties on 21 st July 2014, the day before the final invoice. At 12.30 Moira Gomes, Dr Rahimian's assistant, wrote to Mr Harriman:
Following our meeting with you and Mr Hitchen last week, we would ask you to stop any further work in the above matter and transfer all papers and files to Mr Simon Butler, the barrister now instructed by Dr Rahimian, upon discharge of your fees to date. …
For the avoidance of doubt, Dr Rahiminan does intend to continue his complaint regarding the way in which this matter has been conducted.
Mr Harriman replied at 12.49:
… I note that you do not wish to pursue your complaints against this firm or me … I am preparing files for this transfer. I will also prepare a final account for payment so my fees and counsel can be discharged as you direct so that the papers can be sent to Mr Butler …
Ms Gomes responded at 14.36:
I am sorry, but you appear to have misunderstood my email content.
Dr Rahimian does intend to continue his complaint against the way the conduct of this matter has been handled. In particular the question of costs. We therefore await hearing from you with your final invoice so that the file may be transferred as soon as possible please.
On 23 rd July 2014 Mr Harriman wrote at 17.50:
I enclose a final bill, statement of account and narrative so this firm's accounts can be discharged and the files transferred to your new Counsel.
The first proceedings
On 23 rd July 2015 the Claimants commenced Part 8 proceedings against the Defendants in the Senior Courts Costs Office in which they claimed:
Pursuant to s.70(2) Solicitors Act 1974 there be an Order in standard form for the detailed assessment of the series of on account invoices commencing on 30 th September 2011 and culminating in a final bill numbered 158270 dated 22 nd July 2014 delivered by the Defendant to the 2 nd Claimant on 23 rd July 2014.
Unfortunately the Claimants' new solicitors requested the Court not to serve the claim form, indicating that they would effect service themselves. They failed to do so within 4 months of issue. It was served a few days late.
The hearing of that claim had been listed for 25 th January 2016, following the service of a "Defence" on 8 th December 2015. In a witness statement dated 11 th January 2016 Mr Carlisle, on behalf of the Claimants, sought to extricate them from their procedural difficulty. He explained that proceedings had been issued before the judgment of Walker J. in Vlamaki v Sookias & Sookias [2015] EWHC 2224 (QB). As a result of that decision it was thought that the court might conclude that no final bill had been delivered and that there was nothing capable of a detailed assessment. Accordingly "to the extent that it is necessary" the Claimants sought permission to amend the claim form or to issue a new claim form seeking either an order for delivery of a final statute bill pursuant to s.68 or an order for assessment, should the court find that a final statute bill had been delivered.
In the event, not surprisingly, those proceedings were discontinued before the hearing.
The current proceedings
The current proceedings, seeking only an order for the delivery of a final bill, were issued on 12 th February 2016. It is common ground that as those proceedings were issued more than 12 months after payment of the invoices, the court does not have the power to order an assessment of those invoices. That is the effect of section 70(4) of the 1974 Act: the power to order assessment is not exercisable after the expiration of 12 months from the payment of the bill. Thus only if the Claimants can show that the invoices that have been delivered are not "bills" for the purposes of the Act can there now be an assessment (following, first, an order for the delivery of a bill which can be assessed).
The evidence
In the present proceedings witness statements were served by both parties. The Claimants served statements of Dr Rahimian, Mr Carlisle and Ms Moore. Dr Rahimian's statement was very short. He...
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...bill sets out the entirety of the costs for the period covered by the bill was referred to by Master Gordon-Saker in Dr Rahimian and another v Allan Janes LLP [2016] EWHC B18 (Costs). The Master said at paragraph 30 that the bill must contain sufficient information to enable the client to o......