Mark Lewis Law Ltd (First Claimant/Respondent) Mark Lewis (Second Claimant/Respondent) v Taylor Hampton Solicitors Ltd (First Defendant/Appellant) Taylor Hampton Law LLP (Second Defendant/Appellant)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Whipple |
| Judgment Date | 22 September 2017 |
| Neutral Citation | [2017] EWHC 2359 (QB) |
| Date | 22 September 2017 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ15X01334 |
[2017] EWHC 2359 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Whipple DBE
Case No: HQ15X01334
and
and
Mr Adam Turner (instructed by Seddons Solicitors) for the Claimants/Respondents
Mr Ben Smiley (instructed by Taylor Hampton Solicitors) for the Defendants/Appellants
Hearing dates: 20 September 2017, Judgment delivered ex tempore on 22 September 2017
Background
The appellants are Taylor Hampton Solicitors Ltd and Taylor Hampton Law LLP. I shall refer to them as Taylor Hampton. The respondents are Mark Lewis Law Ltd and Mark Lewis. I shall refer to them as Mark Lewis. Taylor Hampton seeks permission to appeal the decision of Master Gidden dated 30 August 2017, sealed 1 September 2017. For reasons which will become apparent, I will refer to that decision as " Gidden 2". By Gidden 2, the Master refused Taylor Hampton's application dated 14 August 2017 for permission to amend their defence and counterclaim and response to the first claimant's request for information. The appellants' notice is dated 8 September 2017 and attaches 10 grounds of appeal.
Mark Lewis resists this appeal.
Both parties appear by counsel, and both counsel submitted skeletons in advance of the hearing, and have made oral submissions. I am grateful for the assistance provided by both legal teams.
The application for permission to appeal was referred by the Court office to an oral hearing during vacation. Thus it came before me on Wednesday, 20 September 2017. I had indicated in advance that I proposed dealing with the matter on a "rolled-up basis" with the substantive appeal to follow immediately if permission was granted. In fact, the hearing lasted the best part of the day and I reserved judgment overnight. There is some urgency in resolving this matter because the trial is listed for four days in a five day window starting on 23 October 2017.
Approach under Rules
My approach to this application is governed by CPR Part 52. I will only grant permission to appeal if I consider that the appeal would have a real prospect of success or there is some other compelling reason for the appeal to be heard. If I were to grant permission, I could only allow the appeal if I concluded that Gidden 2 was wrong (no one suggests that his decision was unjust by virtue of any procedural or other irregularity).
Conclusion
I have concluded that this appeal has no real prospect of success and there is no compelling reason for it to be heard. I wish to be addressed on two minor points which arise on the pleadings, but in all other ways and on all other grounds I refuse permission to appeal. These are my reasons.
Gidden 2
I start with Gidden 2. Master Gidden noted that the essence of Taylor Hampton's application was their wish to resile from an admission of mitigated losses. I agree with Master Gidden that that was the essence of the application before him, and of the application to appeal which comes before me.
Master Gidden refused that application for various reasons (I summarise): first, on grounds of prejudice; secondly, on grounds that the application was made very late and could have been made much earlier; third, that Taylor Hampton had put forward no explanation as to why it had originally put forward a quantum case which it now suggested contained errors; fourth, that Taylor Hampton was offering no assurance that even the current proposed draft represented the final and accurate statement of case; fifth, that Taylor Hampton's case that the amendments would not prejudice Mark Lewis but would in fact benefit him was incorrect, and did not reflect well on Taylor Hampton; sixth, that this application was a collateral challenge to Gidden 1.
Before me both parties have agreed that the collateral challenge point is a "knock-out" to this appeal. For that reason, I will consider the issue of collateral challenge first in order. That involves looking at the evolution of Taylor Hampton's case over time.
Collateral challenge
The claim was issued on 5 March 2015. By it, Mark Lewis claimed unpaid commissions and introduction fees, due, so he argued, under the first contract with Taylor Hampton, by which he was to provide his services as a solicitor via his service company, specialising in representing victims of phone hacking. Mark Lewis added a second claim under the second contract in February 2017.
On 19 August 2015, Taylor Hampton filed its defence and counterclaim. The claim was denied and a counterclaim was advanced, the centrepiece of which was Taylor Hampton's allegation that Mark Lewis had failed to devote 25 hours per week of chargeable time to the carrying out of legal services of Taylor Hampton, as he was obliged to do under the relevant agreement. This is referred to as the " 25 hour counterclaim". The pleading asserted at paragraph 34(i)(a) that Taylor Hampton "has had to have work that ought to have been carried out by Mark Lewis carried out by others, whether existing or additional fee earners and whether at additional cost and/or lesser profit" and at paragraph 34(i)(b) that Taylor Hampton had lost the opportunity to take on additional work. The figure claimed was supported by a statement of account attached to the defence and counterclaim. The figure claimed was £768,889.46.
Mark Lewis requested further information from Taylor Hampton as to the identity of the fee earners who had done the work that Taylor Hampton said should have been done by Mr Lewis, to identify what additional fee earners were recruited to do that work and to identify the work done by its nature, the case it related to and its quantity in hours. This was request 6 of the RFI, seeking further information in relation to paragraph 34(i)(a) of the defence and counterclaim as it then stood. The response was given by Taylor Hampton in a document dated 10 February 2016 attested by a statement of truth (which is the " Response to RFI"). Five individual employees were named and clarification was given that the nature of the work done was primarily on phone hacking cases. As to the individual cases and quantity of hours, the Response to RFI referred to the attached spreadsheet which was labelled Table A. The Response to RFI is a formal document, which forms part of Taylor Hampton's pleaded case. Together with the defence and counterclaim, I will refer to these as the " original version".
Within the Response to RFI, Table A is important. It sets out Taylor Hampton's calculations for the four years that Mark Lewis was working for them (from 5 September 2011 to, on their case, 29 April 2015). One of the bases of calculation is a line headed "fee earners recorded time" which sets out the hours charged by other fee earners in the aggregate amount of £744,000. Table A then sets out figures for the notional charge to clients if those hours had in fact been done by Mark Lewis, instead of the other fee earners at a lower rate, and arrives at a differential between the two resulting figures, which is claimed as Taylor Hampton's loss. That figure is in fact £794,986.34, therefore slightly higher than the figure that appears in the defence and counterclaim.
In the original version, therefore, the 25 hour counterclaim was advanced on the basis of the differential between the fees actually billed (£744,000) and the notional fees which could have been billed if Mark Lewis had done that work at his higher charge out rate. I shall call this the " differential basis". The calculation involved working out the gross notional claim and then giving credit for fees actually billed. Counsel variously referred to this as a concession or a form of mitigation of loss: I accept those descriptions.
The original trial date in 2016 was lost and trial was re-listed for October 2017. Taylor Hampton proposed various amendments to its pleaded case during the early part of 2017, culminating in an application dated 3 July 2017 for permission to amend, attaching a draft amended defence and counterclaim (this is the " July version"). By paragraphs 33 and 34 of the July version, Taylor Hampton sought to advance a much wider case on quantum than previously. The case built on the differential was abandoned. In its place, Taylor Hampton sought to argue that they had been deprived of the opportunity to...
To continue reading
Request your trial
-
Royal Fidelity Merchant Bank & Trust (Barbados) Ltd v The Attorney-General
...should have in any event, refused any application to withdraw. 42 In Mark Lewis Law Ltd & Anor v Taylor Hampton Solicitors Ltd & Anor [2017] EWHC 2359 (QB) one of the amendments to pleadings proposed by the defendants was the withdrawal of the concession made in the original version. The e......