Haskell Elias v Wallace LLP
| Jurisdiction | England & Wales |
| Judge | Gordon-Saker |
| Judgment Date | 12 October 2022 |
| Neutral Citation | [2022] EWHC 2574 (SCCO) |
| Docket Number | Case No: SC-2022-APP-000546 |
| Court | Senior Courts |
| Year | 2022 |
[2022] EWHC 2574 (SCCO)
SENIOR COSTS JUDGE Gordon-Saker
Case No: SC-2022-APP-000546
IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE
Royal Courts of Justice
London, WC2A 2LL
Mr Francis Kendall (of Kain Knight) for the Clamant
Mr Martyn Griffiths (instructed by Wallace LLP) for the Defendant
Hearing date: 26 th August 2022
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
SENIOR COSTS JUDGE Gordon-Saker
At the hearing of this claim on 26 th August 2022 I indicated that I would order that the claim be dismissed and that the Claimant should pay the costs of the Defendant, which I assessed summarily in the sum of £15,159.25. The claim was for the delivery of a bill under s.68 Solicitors Act 1974. I explained that, in my view, the Defendant had already delivered a final bill to the Claimant, but that I would set out the reasons for my decision in writing. The hearing had been listed for 2 hours and, given that the claim raised a number of novel issues, there was insufficient time to give judgment ex tempore. These are therefore the reasons for my decision. As I said at the hearing, time to appeal will not run until the date of this judgment and the order.
The Defendant is a firm of solicitors. Between July and October 2020 the Defendant was retained by the Claimant to act on his behalf in proceedings in the Business and Property Courts. Over that period, the Defendant issued 6 invoices:
i) 19 th August 2020 for profit costs in the sum of £38,017 and disbursements of £800.50 (excluding value added tax). The bill was expressed as “To our interim professional charges in connection with the above matter for the period 27 July to 17 August 2020”.
ii) 19 th August 2020 for counsel's fees of £4,599 plus value added tax.
iii) 28 th August 2020 for profit costs in the sum of £10,817.50 and disbursements of £20 (excluding value added tax). The bill was expressed as “To our interim professional charges in connection with the above matter for the period 18 to 27 August 2020”.
iv) 28 th August 2020 for counsel's fees of £2,875 plus value added tax.
v) 30 th September 2020 for profit costs in the sum of £7,758.50 (excluding value added tax). The bill was expressed as “To our interim professional charges in connection with the above matter for the period 1 to 30 September 2020”.
vi) 15 th October 2020 for profit costs in the sum of £1,903 and disbursements of £150 (excluding value added tax). The bill was expressed as:
“For the period from 1 October 2020 to date
To our professional charges in relation to advising regarding strategy and prospective application for an unless order, corresponding with Shepherd Wedderburn regarding further request for extension of time for service of defence and DM's ongoing breaches of injunction order, advising and reporting to your [sic] throughout.”
The Claimant paid a sum on account of costs and £30,000 was received from the Claimant's opponent under an interlocutory costs order. The total of the invoices is £80,168, of which £27,168 remains outstanding. In January 2022 the Defendant sent a letter before claim in respect of the outstanding balance. On 11 th July 2022 the Claimant commenced this claim.
The Claimant's case is that the invoices are not statute bills, either interim or final, that they were not signed, that the emails which accompanied them were not letters for the purposes of the 1974 Act and that the invoices were not delivered to the Claimant.
The Defendant's case is that the invoices formed a Chamberlain bill, that they were signed, that the emails which accompanied them were letters for the purposes of the Act and that delivery of the invoices by email was effective.
Section 69 of the Solicitors Act 1974, insofar as relevant, provides:
69.—(1) Subject to the provisions of this Act, no action shall be brought to recover any costs due to a solicitor before the expiration of one month from the date on which a bill of those costs is delivered in accordance with the requirements mentioned in subsection (2) …
(2) The requirements referred to in subsection (1) are that the bill must be—
(a) signed in accordance with subsection (2A), and
(b) delivered in accordance with subsection (2C).
(2A) A bill is signed in accordance with this subsection if it is—
(a) signed by the solicitor or on his behalf by an employee of the solicitor authorised by him to sign, or
(b) enclosed in, or accompanied by, a letter which is signed as mentioned in paragraph (a) and refers to the bill.
(2B) For the purposes of subsection (2A) the signature may be an electronic signature.
(2C) A bill is delivered in accordance with this subsection if—
(a) it is delivered to the party to be charged with the bill personally,
(b) it is delivered to that party by being sent to him by post to, or left for him at, his place of business, dwelling-house or last known place of abode, or
(c) it is delivered to that party—
(i) by means of an electronic communications network, or
(ii) by other means but in a form that nevertheless requires the use of apparatus by the recipient to render it intelligible,
and that party has indicated to the person making the delivery his willingness to accept delivery of a bill sent in the form and manner used.
(2D) An indication to any person for the purposes of subsection (2C)(c)—
(a) must state the address to be used and must be accompanied by such other information as that person requires for the making of the delivery;
(b) may be modified or withdrawn at any time by a notice given to that person.
(2E) Where a bill is proved to have been delivered in compliance with the requirements of subsections (2A) and (2C), it is not necessary in the first instance for the solicitor to prove the contents of the bill and it is to be presumed, until the contrary is shown, to be a bill bona fide complying with this Act.
(2F) A bill which is delivered as mentioned in subsection (2C)(c) is to be treated as having been delivered on the first working day after the day on which it was sent (unless the contrary is proved).
…..
(5) In this section references to an electronic signature are to be read in accordance with section 7(2) of the Electronic Communications Act 2000 (c.7).
(6) In this section—
“electronic communications network” has the same meaning as in the Communications Act 2003 (c.21).
…..
Section 7(2) of the Electronic Communications Act 2000 provides that:
(2) For the purposes of this section an electronic signature is so much of anything in electronic form as–
(a) is incorporated into or otherwise logically associated with any electronic communication or electronic data; and
(b) purports to be used by the individual creating it to sign.
Are the invoices statute bills?
A solicitor's retainer is an entire contract and, save in two circumstances, solicitors are not entitled to payment on account other than for disbursements. The exceptions are, first, where there is a natural break in protracted litigation and, secondly, where there is an agreement that the solicitor can submit interim statute bills.
The Claimant's case as to why the invoices are not statute bills is not entirely clear. The claim form described them as:
“a series of invoices rendered by the Defendant law firm that contain fees which are of an interim and on account nature (i.e. NOT interim statute in nature) due to their: parsity [sic] of information; being unsigned; and being delivered by e-mail only with no express confirmation provided by the Claimant for such an approach to constitute valid service”.
The issue in the claim was identified as:
“are these invoices capable of being deemed interim statute invoices based on the level of detail provided within them as stand alone documents and/or has a final statute invoice covering these charges been rendered (with the latter question answered by the last of the invoices continuing with the word “interim”).
It is based on that simple factual basis that the Claimant seeks a declaration that no statute invoices, interim or final, have been rendered by the Defendant and that statute invoices be rendered in order for the Claimant to invoke his rights to have a Solicitors Act assessment of the fees and charges of the Defendant.”
In paragraph 14 of his skeleton argument Mr Kendall indicated that the Claimant did not accept that sufficient information had been provided in the invoices. However in his oral submissions he did not develop that, but addressed the Defendant's contention that the invoices formed a Chamberlain bill. He pointed out that the last bill did not say that it was a final bill, there was no indication that it was a final bill, and that the series of invoices were not identified as a Chamberlain bill.
It is not the Defendant's case that the first five invoices were interim statute bills and that the last was a final statute bill. Clause 5.1 of the Defendant's terms of business entitled them to deliver interim bills but did not state that such bills would be final for the periods that they cover. That may well be why the Defendant contends that the bills formed a Chamberlain bill.
In Chamberlain v Boodle & King [1982] 1 WLR 1443 the terms of the Defendants' retainer did not allow for self-contained interim bills, but did allow for regular “statements”. The retainer lasted for 6 months over the course of which they delivered 4 bills to the Claimant. The court concluded that there had been no natural breaks, but that the bills “should be regarded as one bill in respect of one complete piece of work, although divided into parts”. As the Claimant had demanded taxation of the last within...
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