Eric Charles Walker (1) Carole Ann Scott (2) Christopher Balchin (3) (Appellants (Case 0394) v Peter Charles Burton (1) Susan Anne Burton (formerly Bamford) (2) (Respondents (Case 0394)

Hearing dates: 27-28 February 2013

These are cross appeals against the order made on 23 May 2012 by SCCO Deputy Master Hoffman, sitting as a Deputy Adjudicator to HM Land Registry, by which he assessed at a figure of £157,309.97 the costs payable by Mr & Mrs Burton to Mr Walker and others (whom I will refer to as "the villagers", as they have been throughout the proceedings for reasons appearing below). The villagers say that the adjudicator was wrong to apportion their solicitors' total costs for a specified period between those of them who were contractually liable to the solicitors (who acted for them all) and those who were not; the effect of that decision being to cut in half the recoverable amount for base costs. The adjudicator refused permission on that ground, but on the villagers' renewed application I determined at the opening of the appeal that it should be granted. There are cross appeals, both with the permission of the adjudicator, against his decision to allow a success fee of 60% on the villagers' base costs as assessed.

Background

The underlying proceedings were bitterly fought and attracted substantial national publicity. I summarise the background very briefly. The dispute related to the lordship of the manor of Ireby, a village in Lancashire, and whether it continued in existence to this day. In 2000 Mr Burton and his then partner Susan Banford (they have since married and for simplicity I refer to them throughout as Mr & Mrs Burton) purchased Over Hall, a large house in Ireby. They did not at that time take any express assignment of the lordship, but in 2003, on their application, were nevertheless registered at HM Land Registry as proprietors of the lordship. The following year they took a confirmatory assignment for a consideration of £1 from the vendors of Over Hall. Immediately to the north of Over Hall lies Ireby Fell, some 300 acres of moorland subject to various rights of common. An enquiry in 1997 had failed to find any owner of the land, but in 2005 Mr & Mrs Burton were registered as first proprietors of the fell, on the basis that it was land of the manor that passed with the lordship title.

Disputes arose with the owners of various properties in the village when Mr Burton purported to exercise rights deriving from the lordship to require them to clear up or cease obstructing (eg by parking vehicles) pieces of land near their properties which, he claimed, were waste land of the manor and thus owned by him as lord of the manor. In 2007 Mr Walker and 5 other residents of the village of Ireby, initially acting in person, applied to the Land Registry to close both the lordship and the fell titles. That application was referred to the Adjudicator and eventually determined by Mr Simon Brilliant, sitting as a Deputy Adjudicator, after a 10 day hearing at which historical evidence going back to the Domesday Book was examined in detail. On 10 December 2010 he handed down a comprehensive written judgment of great clarity (from which I have gratefully derived the above summary) in which he upheld the villagers' principal case that the lordship had ceased to exist by virtue of the break-up of the manorial lands by 1605. He determined that the lordship title should be closed accordingly. However although he found that title to the fell had been registered by mistake (ie that Mr & Mrs Burton owned it as lands of the manor) he declined to order closure of the fell title. Mr & Mrs Burton had acquired that title in good faith and come to be in possession of the fell, and the register should not be rectified against them without their consent (Land Registration Act 2002 Sch 4 para 6(2)). Although not relevant to the hearing before me, I note that an appeal against that latter decision was dismissed by Mr Jeremy Cousins QC, sitting as a Deputy Judge of this court, on 17 April 2012 (Walker and others v Burton and another, [2012] EWHC 978 (Ch)). A second appeal has been heard by the Court of Appeal, upon which judgment is awaited.

Following farther submissions Mr Brilliant made a costs order (as amended on 29 June 2011) under which, inter alia, Mr & Mrs Burton were to pay the villagers' costs of a preliminary issue in full and the other costs of the reference as to 80%, in each case on the standard basis subject to detailed assessment. It is common ground that the reference was governed by The Adjudicator to Her Majesty's Land Registry (Practice and Procedure) Rules 2003 (SI 2003 No 2171; "the 2003 Rules"), which provide by Rule 42 for the Adjudicator to make a costs order and to assess the costs claimed. Thus it was that Deputy Master Hoffman came to assess the villagers' costs, sitting as a Deputy Adjudicator.

Although the 6 villagers initially acted in person, from 16 October 2007 they were represented by the solicitors firm of Blakemores in Birmingham, which had relevant expertise in manorial law. The fee earner initially acting was Mr Geoffrey Barrett, a consultant. From 14 May 2008 the matter was handled by Mr Michael Baxendale, then a partner in the firm. There were issues before Deputy Adjudicator Hoffman as to the basis on which the solicitors initially acted and whom they represented.

It appears from the correspondence in the bundle that Blakemores were initially approached by Ms Scott in 2005, when she was sent a client care letter, but that she and the other villagers must have decided to commence the closure application themselves and did not give any instructions to Blakemores until 2007. On 3rd April 2008 Ms Scott wrote a letter, which appears in the bundle redacted save as to the header which shows that it concerned the lordship and fell titles and the signature which is stated to be on behalf of herself and the other 5 villagers. In subsequent correspondence and attendance notes Ms Scott is treated as the point of contact for "the group" and recorded as saying that she is authorised to agree matters such as fees of counsel on behalf of the group. On 20 June 2008 Blakemores sent an email to Mr Walker saying that they would be sending" … a client care letter … to every member of the group, as they will all be clients" and on 19 August 2008 Mr Baxendale wrote to Ms Scott referring to the level of costs incurred and saying "at least you are assisted by the fact that you are presumably sharing the costs somehow between yourselves although, for the record, you are all jointly and severally liable to my firm for costs". Blakemores clearly regarded all 6 villagers as their clients, having gone on the record for them, but were sending their bills only to Ms Scott and/or Mr Walker and, it appears, leaving it to them to organise the provision of funds to settle those bills.

In a witness statement made for the assessment proceedings, Mr Baxendale described how he had become involved in 2008 and had his instructions to act confirmed at a meeting with all 6 villagers on 17 June 2008, at which they also agreed that he could charge an hourly rate of £300 whereas Mr Barrett had charged £195. Shortly after, he said, he agreed that because of the villagers' financial constraints he would send interim bills at £195 per hour, deferring the balance. The bills were nevertheless substantial because there were active proceedings on a preliminary issue on which Mr & Mrs Burton sought to strike out the application, and so he later proposed a CFA.

The CFA was sent on (and dated) 27 April 2009. Mr Baxendale's witness statement said (bundle p246):

"Only Ms Scott, Mr Walker and Mr Balchin were asked to sign the [CFA] agreement. The reason for this was that it was clear by this stage that it was those three clients who were the funders for the action. However their funding was for us to represent them in their case which was a joint case with the other [villagers], none of whom however had the funds to contribute directly themselves… None of the [villagers] ever had cases that were separate or severable from the others so it was natural we should be on the record for all of them and all documents and submissions were joint."

Ms Scott, Mr Walker and Mr Balchin were referred to as "the CFA clients" and the other three as the "non-CFA clients". I observe that the non-CFA clients included Mr Walker's wife and Ms Chamberlain who is referred to in correspondence as Ms Scott's partner (and who has since died, Ms Scott being her representative).

The CFA contained a retrospective element; it provided that fees prior to 27 April 2009 would be charged at £195 up to 31 December 2008 and thereafter £225 "if you lose the case" but "if you win costs in the entirety of the period before 27 April 2009 will be at the rate of £300 per hour plus VAT…". For the future "If you win your claim you pay our basic charges, disbursements and a success fee. Our basic charges means our time at the hourly rate of £300 plus VAT. The success fee is an additional 100% on top of the basic charges to represent the risk factors in this case which include the following: …...