Edginton v Sekhon and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lord Justice Rix |
| Judgment Date | 11 October 2012 |
| Neutral Citation | [2012] EWCA Civ 1812 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2011/1144 |
| Date | 11 October 2012 |
[2012] EWCA Civ 1812
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM CIVIL JUSTICE CENTRE
(HIS HONOUR JUDGE PLUNKETT)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Rix
and
Lord Justice Lewison
Case No: B2/2011/1144
Ms Philippa Daniels (instructed by Ex Lex Solicitors) appeared on behalf of the Appellant.
Mr John Brennan (instructed by Thomas Horton LLP) appeared on behalf of the Respondents.
On 7 April 2011 HHJ Plunkett gave judgment dismissing Mr Edginton's claim against Mr and Mrs Sekhon for professional fees arising out of his retainer as their solicitors. The number of that action ended in 667, and that is how I shall refer to it.
The Sekhons had retained Mr Edginton to deal with the grant of a lease by them to a Mr Davis. Unknown to them, Mr Edginton was also advising Mr Davis; and it was that conflict of interest which the judge found disentitled him from recovering his fees. The defence to the claim had pleaded, amongst other things, as follows:
"8. Without the consent of the Defendants and in breach of his retainer, the Claimant proceeded to act also for Mr and Mrs Davis in the transaction. Mr and Mrs Davis were not existing clients of the Claimant. They had moved to Birmingham from Cornwall.
9. In the premises there was a clear and actual conflict of interest in the Claimant acting for the Defendants and acting for Mr and Mrs Davis in the matter of the proposed lease of the premises. In so doing the Claimant was in breach of his fiduciary duty to the Defendants in addition to being in breach of his professional obligations under the Solicitors Practice Rules."
The defence went on to allege in paragraph 13 that:
"In breach of implied terms…and/or negligently the Claimant failed to carry out the Defendants' instructions as a result of which there was a delay in completing the lease of three months costing the Defendants over £13,000 in lost rent."
In his judgment on liability the judge was very critical of Mr Edginton's record-keeping. He said in paragraph 3 of his judgment:
"a. One of the surprising features of this case is the dearth of file notes, memoranda, or confirmatory correspondence (that is, correspondence confirming conversations between client and solicitor) in Mr Edginton's file.
b. The result has been that all involved have been trying to recollect events of some eight years ago, significantly unassisted by the sort of material one might usually expect to exist in such circumstances. Mr Edginton told me, at the conclusion of his evidence that he 'found it very difficult to know what took place where and when' and that, consequently, he had 'to look at things and form a view' as to what had happened."
The claim was originally allocated to the small track, but during the course of its progress through the system a trial estimate of one-and-a-half days was given to it, which would suggest that it was no longer on the small track; but ultimately it was re-allocated to the multi-track in October 2010. At that point the pleadings were amended to introduce a counterclaim against Mr Edginton. That counterclaim simply repeated the defence and then introduced some particulars of loss and damage.
The parties were required to make disclosure of documents, and we have seen the disclosure statements produced by each party. Mr Edginton did not disclose the lease. Mr and Mrs Sekhon did disclose it, in the sense that they revealed its existence, but they said that they were awaiting a copy of the lease from Mr Edginton. What seems to have happened is that Mr Davis, the tenant who had been required to appear to give evidence in response to a witness summons, produced a draft lease at the trial itself; and it was as a result of seeing that draft lease that the counterclaim was abandoned on the morning of the trial. The judge was understandably critical of Mr Edginton who he said did not have a copy of the lease.
When the judge came to consider the question of costs there were three other actions that he was invited to take into account. These actions also arose out of the Sekhons' retainer of Mr Edginton as their solicitors. Two of them related to dealings of 25 Wildmore Lane. Mr Edginton had acted for the Sekhons between 2000 and 2003, although he did not deliver a bill until 3 October 2008. In response to that bill, the Sekhons began two actions. The first, referred to as 164, was an application under Section 70 of the Solicitors Act 1974 for the bill to be taxed. That action was begun on 7 November 2008. The second, referred to as 262, was a claim by the Sekhons against Mr Edginton for professional negligence arising out of the same transaction. That action was begun on 11 March 2009. One of the matters pleaded by Mr Edginton in his defence to that action was that the Sekhons' claim was statute barred. Mr Edginton had also acted for the Sekhons in relation to a dispute with a Mr Baines. Again Mr Edginton had performed his retainer between 2000 and 2003 and again did not deliver his bill until 3 October 2008.
The third action was another application under Section 70 of the Solicitors' Act 1974 for the bill to be taxed. This application was referred to as 165. At some stage 164 and 165 were consolidated and proceeded together.
On 11 April 2011, after the judge had given judgment in claim 667, the Sekhons discontinued the remaining claims. The final background fact that must be mentioned is an offer of settlement made by the Sekhons' solicitors, Thomas Horton LLP, on the 17 March 2009.It was headed "Part 36 offer without prejudice save as to costs". The letter summarised the then current position. First, there was an outstanding costs order against Mr Edginton in the sum of £2,562.43. Second, there was an outstanding costs order in favour of Mr Edginton, the net effect of which was that Mr Edginton owed the Sekhons £1,637.47 in outstanding costs. Third, there had been a default judgment for £3,600.25, but that default judgment was in 667 and was ultimately set aside resulting in the judge's dismissal of the action, which I have mentioned.
The letter also referred to another claim relating to 25 Wildmore Lane claiming £9,475 and pointed out that the claim in relation to costs on the Baines matter, that is 165, was statute barred. The letter continued:
"Notwithstanding the undoubted merit of our client's position as against you, we are instructed that in order to bring all these matters to conclusion our clients are prepared to accept the drop hands settlement. All the proceedings between our clients and you at the present time are to be discontinued by consent with each party paying their own costs and the matter resolving itself in this way. By proceedings we mean the Section 70 Solicitors' Act application currently before the Birmingham County Court under number 8 BN 90165, the proceedings under number 9 BN 00667 in the Birmingham County Court, the proceedings under number 9 RDOO 262 in the Redditch County Court. This is an offer within the meaning of Part 36 of the Civil Procedure Rules and is open for acceptance by you for a period of 21 days from its receipt by you."
Mr Edginton's response to that letter, some two days later, was to insist that the judgment be satisfied...
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