Jugmohan Boodia v Richard John Slade (t/a Richard Slade and Company)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Freedman |
| Judgment Date | 21 November 2023 |
| Neutral Citation | [2023] EWHC 2963 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: KA-2023-000100 |
[2023] EWHC 2963 (KB)
Mr Justice Freedman
Case No: KA-2023-000100
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
KINGS BENCH APPEALS
ON APPEAL FROM THE SENIOR COURTS COSTS OFFICE
ORDER OF COSTS JUDGE JAMES DATED 22 AUGUST 2023
AND ON AN APPLICATION FOR PERMISSION TO APPEAL
AN ORDER OF COSTS JUDGE JAMES DATED 18 MAY 2023
Royal Courts of Justice
Strand, London, WC2A 2LL
Erica Bedford (instructed by W. Davies Solicitors) for the Claimants and Appellants
Benjamin Williams KC (instructed by Richard Slade and Company) for the Defendant and Respondent
Hearing date: 4 July 2023
Judgment handed down in draft: 9 November 2023
Approved Judgment
This judgment was handed down remotely at 12noon on Tuesday 21 November 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
| SECTION NUMBER | SUBJECT | PARAGRAPH NUMBER |
| I | Introduction | 1 – 2 |
| II | Background | 3 – 18 |
| III | The Judgment dated 15 June 2022 | 19 – 21 |
| IV | The Judgment dated 18 May 2023 | 22 – 27 |
| V | The Issues to be considered in this Judgment | 28 |
| VI | Informed Consent Ground | 29 – 42 |
| VII | Erlam and later cases | 43 – 49 |
| VIII | Submissions of the parties as to whether there were implied term as regards informed consent | |
| (a) Submissions for the Appellants | 50 – 53 | |
| (b) Submissions for the Respondent | 54 – 55 | |
| IX | Discussion | |
| (a) The effect of the express term | 56 – 64 | |
| (b) The implied term contended for by the Appellants | 65 – 66 | |
| (c) The application of the law to the instant case | 67 | |
| (d) Discussion | 68 – 74 | |
| X | The Respondent's Notice | 75 |
| XI | Conclusion | 76 |
| XII | The linked application for permission to appeal on the consumer protection issues | |
| (a) Introduction | 77 | |
| (b) The decision on the consumer protection issue | 78 – 83 | |
| (c) Discussion on application for permission to appeal | 84 – 93 | |
| (d) Decision on the linked application | 94 – 100 | |
| (e) Grounds 2–4 | 101 | |
| XIII | Consequentials hearing | 102 – 105 |
I Introduction
This is an appeal against a judgment from Costs Judge James (“the Costs Judge”) dated 24 August 2022. It is brought with the permission of Sir Stephen Stewart. The matter arises in a dispute between solicitors and a former client and relates to detailed assessment proceedings under section 70 of the Solicitors Act 1974. The Costs Judge rejected a contention of the Appellant that the bills of the Respondent were not statutory bills because of a lack of informed consent.
This is also an appeal for permission to appeal a further judgment of the Costs Judge dated 18 May 2023 on the right to advance a consumer rights issue, to which this judgment shall return.
II Background
This is a dispute between a solicitor (“the Respondent”) and former clients (“the Appellants”) in detailed assessment proceedings under section 70 of the Solicitors Act 1974 (“s.70”). The Respondent and the Appellants entered into a written retainer agreement dated 24 January 2013 incorporating the standard terms of business of the Respondent. The Appellants countersigned their acceptance to the terms on 30 January 2013.
There was a term in the retainer letter which entitled the respondent to serve bills each of which would be final for the period to which they related. That term states:
“Bills are rendered monthly in arrears. Our bills are detailed bills and are final in respect of the period to which they relate, save that disbursements (costs and expenses which we incur on your behalf) are normally billed separately and later than the bill for our fees in respect of the same period.”
The standard terms of business contained a provision which stated:
“Entitlement to Assessment
17. The client may be entitled to have RSC's charges reviewed by the court in accordance with the provisions set out in the Solicitors Act 1974”
The respondent relies on the retainer and on the standard terms of business so as to render interim bills. Without this, a contract between a solicitor and a client is prima facie an entire contract such that payment would only become due at the end of the retainer. The consequence is that the time for assessment, if required, is to run from the point of the bills rather than from the end of the case. Since the right to assessment is subject to time limits provided for in s.70, time runs from the date of each bill with the consequences that the statutory right to a detailed assessment may depend upon making the challenge on each bill to which exception is taken at the time and not leaving it to a challenge at the end of the last bill or the end of the retainer. This relates only to the important statutory rights, but is without prejudice to other challenges by reference to contractual and fiduciary rights and obligations.
The Respondent acted for the Appellants between January 2013 and October 2016 predominantly in a right of way dispute. During this period, the respondent delivered 61 bills to the Appellants in accordance with the agreed terms. Thereafter, the relationship broke down and the Appellants applied for assessment of the respondent's bills pursuant to s. 70. These proceedings were brought in the Senior Courts Costs Office (“SCCO”) and were allocated to the Costs Judge.
The first issue which arose in the proceedings was whether the bills delivered by the Respondent were statutory bills, each triggering the s.70 timetable. This potentially raised two questions: (i) did the retainer allow the Respondent to deliver statutory bills, and (ii) if so, were the invoices delivered actually statutory bills? These have been referred to respectively as (i) the contractual entitlement issue, and (ii) the classification issue. These terms will be adopted in this judgment.
It was common ground that if the Respondent's bills were statutory bills, then the right to assess the vast majority of them had been lost. Hence, the issue was of importance to the scope of the assessment proceedings. The Costs Judge dealt with this as a preliminary issue giving judgment on 17 March 2017.
The decision of the Costs Judge on the contractual entitlement issue was that the Respondent had the right to deliver interim bills as statutory bills. However, the classification issue was resolved by the Costs Judge in favour of the Appellants. She found that the invoices delivered were not statutory bills because they did not deal with the entirety of the costs. They only related to profit costs and postponed disbursements until a later stage. The Costs Judge held that this precluded the bills from being statutory bills.
The Appellants did not challenge the original ruling of the Costs Judge on the contractual entitlement issue but the Respondents did challenge the classification issue. This may be relevant to the submissions referred to below that the application which is the subject of the appeal was barred on res judicata/ Henderson v Henderson/abuse of process grounds (collectively referred to by way of shorthand as “res judicata grounds”).
An appeal by the Respondents against the decision of the Costs Judge on the classification issue was dismissed by Slade J. There was no cross appeal on the contractual entitlement issue. A second appeal on the classification issue was brought against the decision of Slade J. This was allowed by the Court of Appeal which held that the fact that the disbursements were not billed with the profit costs did not prevent the bills from being statutory bills.
Slade J's decision is reported at [2018] 1 WLR 2037. She recorded that the Costs Judge had rejected the argument that the Respondent had no contractual right to deliver interim bills. At [3] of her judgment, Slade J summarised how the argument had been rejected in the second paragraph of the judgment of the coasts Judge on 17 March 2017, in the following terms:
“3. The question of whether the retainer permitted the rendering of interim statute bills was an issue before Master James. By para 2 of her judgment, the master recognised that the agreement in the retainer was “somewhat ambiguous between payments on account monthly and [statute] bills monthly”. She noted that the retainer referred to a Solicitors Act assessment and a complaints procedure. Master James held that she “would be reluctant to make a finding of a fatal flaw in the retainer”. The master held “it does seem to me that the retainer does what it needs to do or has potential to do what it needs to do”. The claimants' point had been that the retainer did not provide for interim statute bills. This argument was rejected. The master went on to observe at para 3: “The claimants' second point, however, is a much stronger point …”
Slade J then identified that the second point raised by the Claimants was that the 61 invoices were not interim statute bills in that none of them included both a charge for profit costs and for disbursements, the charge for disbursements being postponed. Later in the judgment at [15], Slade J recorded:
“Mr Dunne for the Claimants pointed out that Master James did not find that there was no entitlement in the retainer for the Defendant to render interim statute bills. I agree. The Master rejected the Claimants' argument that the retainer did not provide for the rendering of interim statute bills. The Master considered whether the bills rendered were bills within the scope of the Solicitors Act 1974 Sections 69 and 70 and so within the terms of the agreement between the parties.”
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