Gamlen Chemical Company (U.K.) Ltd v Rochem Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE TEMPLEMAN,LORD JUSTICE GOFF |
| Judgment Date | 04 December 1979 |
| Judgment citation (vLex) | [1979] EWCA Civ J1204-5 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 1974 G. No. 3313 |
| Date | 04 December 1979 |
[1979] EWCA Civ J1204-5
Lord Justice Goff
Lord Justice Templeman
In The Supreme Court of Judicature
Court of Appeal
On Appeal from The High Court of Justice
Chancery Division
MR A. BUENO AND MISS E. A. GUMBEL (instructed by Messrs. Amhurst, Brown, Martin & Nicholson) appeared on behalf of the Plaintiffs.
MR MUNBY - (instructed by Messrs. Douglas Goldberg & Company) appeared on behalf of the Defendants.
This is an appeal from an Order of Mr Justice Oliver, dated 24th July, 1979;Which he made upon a motion, whereby he ordered as follows: "Upon the undertaking of Counsel for the defendants Rochem Limited, Rochem International Limited and Rochem (Equipment) Limited, on behalf of the solicitors for the said defendants (1) To hold all papers and documents delivered to them by Amhurst, Brown, Martin & Nicholson under this order subject to the lien of the said Amhurst Brown, Martin & Nicholsonfor costs (2) to afford the said Amhurst, Brown, Martin & Nicholson and their costs draftsman reasonable access to the said papers and documents for the purpose of preparing their bill of costs (3) To defend this action in an active manner and (4) To re-deliver the said papers and documents to the said Amhurst, Brown, Martin & Nicholson after the conclusion of this action. Let the said Amhurst, Brown, Martin & Nicholson so soon as may be reasonably practicable and in any event forthwith upon the receipt by them of written authorities from the defendants" - then a number of defendants are named) - "deliver (on oath if required) to Douglas Goldberg & Company all papers in this action and all other documents in the custody or power of the said Amhurst, Brown, Martin & Nicholson relating to this action and belonging to the said defendants or any of them".
Messrs. Amhurst, Brown, Martin & Nicholson, whom I will call the appellants, now appeal against that order.
The action is a very complicated one in which the plaintiffs, who are associated with a large American organisation called Sybron, are suing the three English companies whose names I have just read out, and a number of individual defendants. I need not go into the details of the action, but shortly, the plaintiffs allege a conspiracy against all the defendants, and also various torts and breaches of contract or abuse of fiduciary duty or confidence against individual defendants.
The appellants acted as solicitors for all the defendants, and it was an express term of the retainer that the defendants would make periodical payments on account of costs. I do not think it would make much difference if that were not so, as in my view a solicitor cannot be required to go on with long and complicated litigation, without being put in funds, unless, of course, he has expressly agreed so to do.
But here, as I say, there was in fact an express agreement to keep the appellants in funds.
In February 1979, a complication presented itself in that the plaintiffs joined one of the partners in the appellants, as a defendant, alleging thathe was a party to the conspiracy. I wish to make it clear that at this stage nothing whatever has been proved against him; but in the circumstances, leading counsel advised that he should be separately represented, and further that the appellants might not be able to go on acting themselves.
I read from their letter of the 2nd February, 1979, reporting the position to the defendant, Mr. Bove, who appears to control or to be the moving spirit of the three defendant companies. They said: "As you know, Adrian Churchward was served with the amended Writ in this action on the 16th January and as a firm, we have since taken the advice of Mr. Hamilton Q. C., whose opinion is that Adrian should be separately represented both by solicitors and counsel; Messrs. Reynolds Porter Chamberlain and Company have accordingly been instructed to act on his behalf. Mr Adrian Hamilton further advised that Adrian Churchward's solicitors should serve a searching Request for Further and Better Particulars of the amended Statement of Claim as soon as it has been served and, depending on the answers thereto, seriously consider mounting an application to strike out the Statement of Claim on the ground that it discloses no cause of action. He also advised that in the course of argument at the hearing of a search application we should point out that unless Adrian Churchward is dismissed from the action it will be impossible for Amhurst, Brown, Martin & Nicholson to continue to act for any of the other defendants, which means that they will all have to go away and find separate solicitors".
About the same time a dispute arose between the appellants and Mr Bove who asserted that the appellants' charges were grossly excessive. Again, we cannot try that issue which can only be resolved by taxation. He also said he had no intention of paying any costs until he should know if the action against Adrian, that is Mr. Churchward, be dismissed.
I read from his letter of the 21st February: "I have carefully considered your letter dated 2nd February, 1979 and can only come to the conclusion that Amhurst, Brown would be happy to desert this case. Your charge ofalmost £20,000 for the period from 1st April to 31st December is almost equal to your firm's estimated charges for the entire trial put forward in your letter of 9th June, 1973. May I remind you that we have not yet been through a 60 day trial and that you have not prepared briefs for counsel, just to point out two of the more significant items that I assume were included in the £25,000 estimate. My layman's evaluation of the work involved during the 9 month period would be an amount similar to your charges presented on the 25th April, 1970 for the period from September 1974 to 31st March, 1978, specifically £5,000 to £6,000. Consequently, I am left exasperated concerning your £20,000 bill and do not know how to proceed. This is especially true when I consider the origins of this entire case and the manner in which it has developed. In addition to the above, you leave me with a situation pregnant with the possibility that we will have to seek new solicitors anyway due to Adrian's position. At that time we will have to go out and pay entrance fees to new solicitors to learn what we have already paid you to learn,…… To be fair, I must point out that until I know if the action against Adrian is dismissed, I have no intention of paying anything more than the £5,000 already paid on account".
The suggestion that the appellants would be happy to desert the case is, of course, refuted and was immediately refuted in the correspondence, and some further payments were made but, in the upshot, first no steps have been taken to get Mr Churchward out of the action, and secondly there is a balance due to the appellants, according to their bills of costs, of £12,961, which does not include any disbursements and which the defendants refuse to pay.
On the 23rd February, 1979, the appellants wrote a long letter to Mr Bove, and in the course of that letter they said: "If you wish to come and discuss the matter, I am perfectly prepared so to do but I would make it clear at this stage that I am not prepared to entertain any reduction in the amount of my firm's fees so that if your reason for suggesting such a meeting is with a view to try to persude me to agree such a reduction then we will be wasting each others time. Having said that, as you obviouslyconsider that our bill is excessive, you are entitled to have the same vetted by a Taxing Master and I would be perfectly happy for this to be done. If my firm's costs are not reduced by more than one fifth, then you would have to pay the costs of the taxation in addition to the amount allowed on taxation. However, this operation would take several months and does not solve the present problem, namely that unless my firm's bill is paid in the very near future, then we shall have no alternative but to apply to the Court to be removed from the record. In these circumstances, I am perfectly willing to agree that you should pay the amount of my firm's costs and disbursements without prejudice to your right to call upon us to have the same taxed as aforesaid. As I have said, the matter is now rather urgent as we must instruct counsel to settle an Amended Defence, but I am not prepared to incur any further counsel's fees until firm's costs have been paid. I regret therefore that I must ask you to accept this letter as formal notice to the three defendant companies that if the balance of my firm's costs and disbursements as set out in my firm's bill dated the 2nd February 1979, namely the sum of £16,336" - and I interpose there that that was the figure at that time - "is not paid to us by Friday the 2nd March 1979, we will issue a Summons on Monday the 5th March, 1979 applying for this firm to be removed from the record as solicitors for the three defendant companies".
As Mr. Bove was then abroad, the appellants extended the deadline until the 14th March 1979, and on the 8th March 1979 they wrote accordingly: "I am prepared to extend the deadline from Monday 5th March 1979 until Wednesday next the 14th March, 1979 but if I have heard nothing by that data then I regret it will be necessary to take the course outlined in my letter of the 23rd February".
The dispute dragged on after that, and as I have said certain payments were made but the net balance increased to the figure I have mentioned, over £12,000, and on the 25th June, 1979; the appellants wrote as follows:-"These circumstances leave me no alternative but to apply to the Court for my firm to be removed from the record as solicitors for the three defendant companies and a copy of the Summons will be served upon the...
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