Harrison v Tew
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DILLON,LORD JUSTICE NICHOLLS,SIR FREDERICK LAWTON |
| Judgment Date | 06 July 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0706-2 |
| Docket Number | 87/0689 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 July 1987 |
[1987] EWCA Civ J0706-2
Lord Justice Dillon
Lord Justice Nicholls
Sir Frederick Lawton
87/0689
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(SIR NEIL LAWSON)
Royal Courts of Justice
MR. ALAN NEWMAN and MR. ANDREW WHITE (instructed by Messrs. Kingsford Dorman) appeared for the Appellant (Defendant).
MR. PETER BOWSHER and MR. GORDON BISHOP (instructed by Messrs. Watkins Pulleyn) appeared for the Respondents (Plaintiffs).
MR. ROGER COOKE (instructed by The Secretary-General of The taw Society) appeared for the Law Society.
The defendant in these proceedings, Mr. Geoffrey Tew, the senior partner in a firm of solicitors, Messrs. Geoffrey Tew & Co. of Leicester, appeals, by leave of the judge limited to a particular point of law, against a decision of Sir Neil Lawson, sitting as a judge of the High Court in the Queen's Bench Division, given on 2nd December 1986, whereby the judge dismissed an appeal by Mr. Tew against a decision of Master Creightmore of 15th March 1984, which had directed that some ten bills of costs rendered by Mr. Tew to the first plaintiff, Mr. David Harrison, be referred to the taxing master for taxation.. The point of law raised by the appeal is whether the court has any jurisdiction to order the taxation of a bill of costs on the application of the party chargeable with the bill, when the bill has been paid by that party and his application for the taxation of the bill was not made until more than 12 months after the bill had been paid.
Subsection (4) of section 70 of the Solicitors Act 1974, the statute currently in force, provides that:
"(4) The power to order taxation conferred by subsection (2) shall not be exercisable on an application made by the party chargeable with the bill after the expiration of 12 months from the payment of the bill."
The question on the appeal is whether, despite subsection (4), the court has inherent jurisdiction to direct taxation of a bill on the application of the party chargeable even though the application for taxation was not made by the party chargeable until after the expiration of 12 months from the payment of the bill.
If there is jurisdiction, its exercise would of course be a matter for the discretion of the court. No question of the exercise of discretion arises on this appeal, since the leave to appeal granted by Sir Neil was limited to the question of juris- diction and no more extensive leave to appeal has been sought.
A separate point is, however, taken in a respondent's notice in that it is submitted that in truth, though Mr. Tew has had the money, none of these bills has ever been "paid" in that what is said to have constituted payment took place, it is submitted, before delivery of the bill to the party chargeable.
Because of the importance of both points to the solicitors' profession, this court allowed an application by the Law Society to be permitted to attend the hearing of the appeal and address arguments to the court. There is precedent for such a course. In the event, however, though we heard counsel for the Law Society on the question of the jurisdiction to order taxation, we did not find it necessary to hear counsel for the Law Society or counsel for Mr. Tew on the submission that the bills had not been paid.
As to the facts, Mr. David Harrison is a farmer who, in the latter part of the 1970's, was engaged in a number of property transactions. There were sales of land, particularly of parts of a property called Grove Farm at Narborough in Leicestershire, which were sold for development at fairly substantial prices, and there were also purchases of land, and mortgages of land and some dealings with other property. Mr. David Harrison's parents, the second and third plaintiffs, were beneficially interested in some of the land, but it seems that the instructions to Mr. Tew were given by Mr. David Harrison. Mr. Tew had known Mr. David Harrison for over 20 years before the commencement of these proceedings.
The ten bills in question were delivered by Mr. Tew on various dates from October 1977 to May 1981. But the originating summons in these proceedings seeking the taxation of those bills was not issued until 17th November 1983.
As to the payment of the bills, the evidence as it stood when the summons was before Master Creightmore, and again when Mr. Tew's appeal against the Master's order for taxation was before Sir Neil Lawson, was briefly that Mr. David Harrison had deposed that each bill had been settled on occasions when Mr. Tew had received large sums of money representing the purchase price of various parts of land sold off in the late 1970's and in 1981, and Mr. Tew had deposed that Mr. David Harrison had always agreed his bills and agreed them willingly. The contention that the bills had not been "paid", though adumbrated, was not pursued by the plaintiffs before the Master or before the judge, as the Master and the judge both decided against Mr. Tew on the footing that the court could direct taxation under its inherent jurisdiction, even though the bills had been paid more than 12 months before the issue of the originating summons. When, however, the respondent's notice was served in this court, Mr. Tew filed, with leave, a further affidavit which goes into the course of dealing between himself and Mr. David Harrison in greater detail. It is submitted for the plaintiffs that Mr. Tew's account in that affidavit may not be wholly consistent, in the case of some of the bills, with some of the contemporary documents. I have no doubt, however, that what is proved by Mr. Tew is that, when his firm received moneys into its client account on Mr. Harrison's behalf:
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(i) Mr. Harrison and Mr. Tew sat down in Mr. Tew's office and prepared a handwritten statement written by Mr. Tew in Mr. Harrison's presence, setting out how the moneys received should be paid out. If moneys were to be paid to Mr. Tew's firm in respect of costs, this would be discussed, agreed, and written down with the other matters to be paid;
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(ii) When the details had been agreed, and Mr. Harrison was still in Mr. Tew's office, the handwritten statement would be typed up and a copy of the typed version, together with Mr. Tew's firm's bill for any costs of the firm which Mr. Harrison had agreed were to be then paid, would be handed to Mr. Harrison in Mr. Tew's office, since Mr. Harrison had given express instructions that such statements and bills were to be handed to him physically, and not sent by post; and
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(iii) A few days later, or on occasion even later the same day, Mr. Tew would make the agreed payments out of his firm's clients' account on Mr. Harrison's behalf, including the necessary transfer to the firm's own account of any agreed costs of the firm as set out in the bill agreed and handed to Mr. Harrison.
On these facts I have no doubt that there was a settled account between Mr. Harrison and Mr. Tew on each occasion, and each of the bills was paid by Mr. Harrison in that Mr. Tew made the transfer of the appropriate sum to his firm's account with the prior agreement and authority of Mr. Harrison and after the relevant bill of costs had been delivered to Mr. Harrison. The point taken in the respondent's notice therefore fails.
The plaintiffs claim that the costs charged by the ten disputed bills, and thus paid by Mr. Harrison, were excessive to the tune of over £100, 000. They say that they only discovered this when they consulted other solicitors more than a year after the last bill was paid, and that justice requires that the bills should be taxed and any excess overpaid should be refunded. The plaintiffs' assessment of the excess depends on a calculation from certain available files made by a costs draftsman whom their present solicitors have retained. There are questions whether the files which that draftsman was able to examine were in truth all the files relevant to the work done by Mr. Tew which is covered by the disputed bills, and there are other problems of missing file notes and documents which Mr. Tew claimed would make any taxation of these bills now onerous to him. These are matters, however, with which we are not concerned on this appeal, since they go only to the court's discretion in making the order for taxation, or to the conduct of the taxation if the order for taxation of the bills stands. For the same reason, we are not concerned with the delays which occurred between the making of Master Creightmore's order in March 1984 and the hearing before Sir Neil Lawson in December 1986.
The question, with which we are concerned, of whether the court had jurisdiction to make the order for taxation, not withstanding that the bills had all been paid more than 12 months before the application to the court for taxation was made, involves consideration of the inherent jurisdiction of the court over solicitors as officers of the court, and the effect on that jurisdiction of the statutory provisions as to the taxation of solicitors' costs from time to time in force. We have had the benefit of a careful analysis by counsel of the successive statutory provisions and of numerous decisions of the courts under some of those provisions.
The earliest statute to which we were referred, 3 Jac. 1 cap 7 of 1605, an Act to reform the Multitudes and Misdemeanors of Attonies and Solicitors at Law and to avoid unnecessary Suits and Charges in Law, though historically interesting, does not assist in the inquiry.
The first statute to which we have been referred which contains provision for the court...
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