Manches Llp v Kenneth William Green
| Jurisdiction | England & Wales |
| Judge | Mr Justice Underhill,MR JUSTICE UNDERHILL |
| Judgment Date | 29 April 2008 |
| Neutral Citation | [2008] EWHC 917 (QB) |
| Docket Number | Case No: TLQ071092 |
| Court | Queen's Bench Division |
| Date | 29 April 2008 |
[2008] EWHC 917 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Underhill
Case No: TLQ071092
Derek Sweeting QC and Neil Mendoza (instructed by Manches for the Claimant and Defendants to Counterclaim)
Andrew Prestwich (instructed by Ashton Bond Gigg for the Defendant)
Hearing dates: 18–22, 25 February 2008
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.
The Defendant. The Defendant, Kenneth Green, is the sole principal of a business called Green Denman & Co. (“GD”), who are insurance brokers and independent financial advisers. He has been in business for over thirty years and has a specialist expertise in executive pension schemes. He is clearly eminent in his field and is an experienced professional and businessman. Two sons, Andrew and Michael, work with him in the business. Andrew in particular was closely involved in the matters which have given rise to these proceedings. For convenience, and without intending any disrespect, I will refer in this judgment to Kenneth Green as “Mr. Green” or “Mr. Green senior” and to Andrew by his first name. Where it is necessary to refer to the two of them together I will do so as “the Greens”.
Imagination and Skandia Life. One of GD's clients was a company called The Imagination Group Ltd. (“Imagination”), for whom Mr. Green arranged a commission–based executive pension scheme (known as EP 3) with Skandia Life Assurance Co. Ltd. (“Skandia”). In early 2001 Imagination decided to transfer to a different scheme (“Professional Life”/“PLAC”), provided by an associate company of Skandia, which was not commission-based. This meant a substantial loss to GD; but it was also, Mr. Green believed, disadvantageous to Imagination and its employees. He believed that Skandia had not given Imagination a fair presentation of the respective advantages of EP 3 (or a successor scheme called EP 4) and Professional Life.
The Skandia Proceedings. In February 2003 Mr. Green issued proceedings in the Chancery Division against Skandia on the basis that it had induced Imagination to switch schemes in breach of what he claimed were implied terms in the contract between them. He estimated GD's loss at over £7 million. He initially instructed a firm of solicitors called Rooks Rider. He became dissatisfied with their service; and in late 2003, in circumstances to which I shall have to return, instructed in their place Marshall Ross Prevezer (“MRP”), whose former partners are the Second Defendants to the Counterclaim. The matter was handled there by an experienced but unqualified “old-style managing clerk”, Mr. Tony Kirton. In November 2005, MRP merged with the Claimants, Manches LLP (“Manches”): Mr. Kirton remained in charge of the case. Where it is unnecessary to distinguish I will in this judgment refer to Manches and MRP together as (albeit strictly inaccurately) “the Claimants”. In July 2006 Mr. Christopher Nugee QC, sitting as a deputy High Court Judge, gave “reverse summary judgment” against Mr. Green on most of the issues in his claim against Skandia: some parts of the claim were stayed, but it is now clear that they will not be pursued. Mr. Green has a substantial liability, or contingent liability, to Skandia for the costs of the action.
The Bills. Over the period from early 2004 until the effective dismissal of the claim in July 2006, MRP and Manches between them billed Mr. Green for fees totalling £734,944. Of that amount, he has paid the full sum billed by MRP, namely £344,637.60, together with £39,000 billed by Manches. In these proceedings, commenced on 4 May 2007, Manches claim the outstanding balance, namely £351,307.29 (plus interest). The bills in question have, by a consent order dated 26 July 2007, been referred for assessment by a Costs Judge, but on the basis that the assessment is stayed pending the decision of the issues which are now before me.
The Pleaded Issues. Mr. Green denies any liability to Manches on the outstanding bills, and counterclaims against both Manches and MRP for repayment of the lion's share of the bills already paid. He also claims damages equivalent to his liability in costs (not yet fully ascertained) to Skandia. The pleaded basis for that defence and counterclaim resolves into four points:
(1) The Pilbrow point. Mr. Green alleges that he had engaged MRP, and subsequently Manches, on the express basis that he would have the services of a qualified solicitor, and that it was never explained to him that Mr. Kirton was not a solicitor. The Greens say that this is something of which they were wholly unaware until the conclusion of the hearing before Mr. Nugee. Mr. Green says that that constituted a fundamental breach of duty such that neither firm was entitled to recover any fee for its services: he relies on the decision of the Court of Appeal in Pearless de Rougemont & Co. v. Pilbrow [1999] 3 All ER 355 (“ Pilbrow”). He thus claims not only that he has a defence to the entirety of Manches' claim but also that he has a restitutionary claim for repayment of the £39,000 paid to them and the entirety of the monies paid to MRP: such a claim was allowed in Adrian Alan Ltd. v Fuglers [2002] EWCA (Civ) 1655. The relevant averments are at paras. 6, 9, 12–13 and 28 of the Re-Amended Defence and Counterclaim.
(2) Mr. Adams. Mr. Green alleges that MRP were negligent in failing timeously to ascertain whether the Finance Director of Imagination, Mr. Richard Adams, would be prepared to give evidence in support of the claim against Skandia. It is common ground that Mr. Adams' evidence was crucial to the claim; but he was not approached until April 2005. When he was eventually approached it transpired that he was very unwilling to assist; but Mr. Green says that he was not told this. He says that if Mr. Adams' attitude had been ascertained, as it should have been, in or around February 2004, or in any event if it had been properly communicated to him once ascertained over a year later, he would not have proceeded any further with the Skandia litigation. On that basis Mr. Green not only denies liability on the outstanding bills but claims damages equivalent to the full amount paid to MRP since February 2004, namely £295,734.58, plus the £39,000 paid to Manches and the amount of his costs liability to Skandia. The relevant averments are at paras. 11, 14–17 and 22–23 of the Re-Amended Defence and Counterclaim.
(3) Practice Rule 15. Mr. Green pleads at para. 10 of the Re-Amended Defence and Counterclaim that it was an implied term of the retainers of both firms that they would “conduct themselves in accordance” with rule 15 of the Solicitors Practice Rules 1990, and specifically with the requirement under head (a) of that rule that they should give proper information about costs. Para. 21 (b) of the Re-Amended Defence and Counterclaim pleads a breach of that obligation in that:
They failed to give to the Defendant the best information possible about the likely overall costs, including a breakdown between fees, VAT and disbursements, including giving a realistic estimate of costs or a forecast within a possible range of costs.
At the start of the trial I gave permission to re-amend that sub-paragraph to add three more specific allegations by way of particularisation of the general plea made in it. For reasons which will appear, I need not set out those particulars in full: Mr. Green's essential point is that the bills eventually incurred were far in excess of any estimate that he had ever received (and in particular of an estimate for the costs of the whole action which he was given in October 2005 to include a three-week trial, of £440,000).
(4) The Solicitors Act. By a further re-amendment permitted by me, Mr. Green puts Manches to proof that each of the bills on which they sue was signed by a partner as required by s. 69 (2) of the Solicitors Act 1974.
(There is also an unparticularised plea at para. 21 (c) of the Re-Amended Defence and Counterclaim to the effect that Manches and MRP failed to advise Mr. Green that the likely outcome of the Skandia proceedings would not justify the expense and risk involved in bringing them. But Mr. Prestwich, for Mr. Green, helpfully confirmed that this plea was not intended to raise any allegation of a specific breach of duty over and above that relating to Mr. Adams. In this connection I should mention that Mr. Green addressed evidence from a Mr. Bridge, a Skandia employee who it was said could have given useful evidence but from whom MRP failed to take a statement. His evidence which was in any event extremely limited, went to no pleaded issue.
Status of the Rule 15 Issue. Mr. Sweeting QC for Manches and MRP submitted that Mr. Green's case as regards this issue was misconceived. In the first place, it was not right to imply into the retainer a term that the firms would comply with rule 15 of the Solicitors Practice Rules: as to this, he referred me to the judgment of Morgan J in Mastercigars Direct Ltd v Withers LLP [2007] EWHC 2733 (Ch), esp. at para. 107. Thus, he submitted, the only basis on which the claim was pleaded fell away. Further – though this may on analysis be another aspect of the same point – the particular complaints which Mr. Green wishes to raise under this head are all matters which can more appropriately be determined as part of the assessment by the Costs Judge: he referred by way of illustration...
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