Madurasinghe v Penguin Electronics (A Firm)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NOURSE,LORD JUSTICE McCOWAN,LORD JUSTICE HIRST |
| Judgment Date | 18 November 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J1118-5 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 November 1992 |
| Docket Number | 92/1113 |
[1992] EWCA Civ J1118-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BRENTFORD COUNTY COURT
(HIS HONOUR JUDGE MARCUS EDWARDS)
Royal Courts of Justice
Lord Justice Nourse
Lord Justice Mccowan
Lord Justice Hirst
92/1113
MR ABRAHAM VERGHESE, instructed by Messrs Don & Co., appeared for that firm.
THE RESPONDENT (Plaintiff) appeared In Person.
THE DEFENDANTS did not appear and were not represented.
I will ask Lord Justice McCowan to deliver the first judgment.
This is an appeal, with the leave of the learned judge, from the order of His Honour Judge Marcus Edwards, sitting with two assessors, made on 26th September 1991. The appellants are solicitors who acted for the plaintiff in litigation concerning a defective video camera which the plaintiff had purchased from the defendants. The appellants submitted two bills of costs to the plaintiff—a gross sum bill on 15th May 1990 and thereafter a detailed bill—in circumstances which I shall describe.
On 13th September 1990 the appellants applied for the detailed bill to be taxed under section 74 of the Solicitors Act 1974 and Order 38, rule 21 of the County Court Rules 1981. The bill was taxed by Deputy District Judge Roberts on 1st March 1991. The appellants were dissatisfied with that taxation and requested that the deputy district judge reconsider it. However, he upheld his taxation. The appellants were still dissatisfied and applied for a review of the taxation by a judge under Order 38, rule 24 of the County Court Rules 1981. The learned judge dismissed the appellants' application and upheld the taxation. It is from that order of the judge that the appellants appeal. The appellants have been represented on the appeal by counsel. The respondent, the plaintiff in the litigation, appears in person.
I turn to summarise the facts of the matter. In August 1989 the appellants were instructed by the respondent to act on his behalf. A default judgment was obtained by the appellants against the defendants in the action. The defendants applied to set aside that default judgment, but judgment was again entered in favour of the respondent on 24th April 1990. On 14th May of that year the appellants wrote to the respondent in order to obtain instructions regarding the enforcement of the judgment. The next day the respondent's wife telephoned the appellants and informed them that she and her husband were dissatisfied with the appellants' performance and that they were no longer instructed to act for them. Having received that telephone call, the appellants wrote to the respondent on 15th May sending a gross sum bill in the sum of £528 inclusive of V.A.T.. By a letter of 16th May the respondent required the appellants to produce a detailed bill of costs and for those costs to be taxed. Pursuant to the respondent's request, the appellants submitted their file to professional costs draftsmen who produced a detailed bill amounting in total to £981.44 inclusive of V.A.T.. That detailed bill was delivered to the respondent. On 13th September the bill was lodged at the court and an application was made for taxation.
The first ground of appeal reads as follows:
"The learned Judge erred in law in holding that on a review of taxation under Order 38 rule 24(4) of the County Court Rules 1981 the Court can only reject the opinion of taxing officer if he had regard to irrelevant considerations or failed to take into account relevant considerations or if his opinion was clearly wrong. The learned Judge ought to have held that on a review of taxation under Order 38 rule 24(4) of the County Court Rules 1981 the Court may hear the taxation afresh."
On that aspect of the case the judge's judgment reads as follows:
"We have had the benefit of argument from experienced counsel. Nevertheless we dismiss the appeal. Our decision is based on the 'Wednesbury' principle; see Hart v Aga Khan Foundation [1984] 1 WLR 994. On this principle a court can reject the opinion of the taxing master only if he had regard to irrelevant considerations or failed to take into account relevant considerations or if his opinion was clearly wrong."
I omit at this stage the following paragraph which deals with another aspect. In the third paragraph of the judgment the judge said:
"We are satisfied that he took into account what should have been taken into account, that he did not take into account irrelevant considerations and that his opinion was not wrong."
I turn to look at the case of Hart v. Aga Khan Foundation [1984] 1 W.L.R. 994. That case concerned the taxation of a litigant in person's bill of costs under the Litigants in Person (Costs and Expenses) Act 1975 and the Rules of the Supreme Court Order 62, rule 28A. Rule 28A(2) provided:
"The amount allowed in respect of any item shall be such sum as the taxing officer thinks fit not exceeding, except in the case of a disbursement, two-thirds of the sum which in the opinion of the taxing officer would have been allowed in respect of that item if the litigant had been represented by a solicitor."
This sub-rule, it can fairly be said, required the taxing officer to have regard to a hypothetical bill of costs. At page 1005 letter B Lord Justice Cumming-Bruce, giving the first judgment, with which Mr Justice Bush agreed, said this:
"The exercise which is therein imposed on the taxing master is to apply his mind to all the problems which the preparation for the action, including in this case the preparation for the interlocutory injunction, would have imposed upon a conscientious solicitor who is notionally regarded as doing the work. The work actually done by the litigant in person, to a greater or lesser degree, may afford some guidance as to the work which a solicitor would have done. That would depend upon the degree to which the litigant in person correctly appreciated the business involved. In many cases it is likely that the work actually done by a litigant in person will be of negligible assistance to the taxing master when considering what work a solicitor would have done on the case, but it is of course necessary for the taxing master to go carefully through the business involved in preparation for every stage of the trial".
At page 1006 letter E Lord Justice Cumming-Bruce continued:
"As a matter of construction sub-rule (2) proceeds on the basis that it is for the taxing master to form an...
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