Mills-Owens and another v Richard Buxton (A Firm)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Lord Justice Dyson,Lord Justice Maurice Kay,The President of the Family Division |
| Judgment Date | 23 February 2010 |
| Neutral Citation | [2010] EWCA Civ 122,[2009] EWCA Civ 518 |
| Docket Number | Case No: A2/2008/1986 07/P8/1251,Case Nos: A2/2008/2033 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 February 2010 |
[2009] EWCA Civ 518
Lady Justice Arden
Case Nos: A2/2008/2033
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE MACKAY)
THE APPLICANT APPEARED IN PERSON.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
Lady Justice Arden:
This is a renewed application by Mr Mills-Owen for a second appeal against the order of Mackay J dismissing his cross-appeal on an appeal brought by his former solicitors. I can explain very briefly the subject matter of the appeal. The solicitors, Richard Buxton Solicitors, acted for Mr Mills-Owen in two planning matters. The solicitors advised that the appeal was likely to fail but the claimant was adamant as to how he wanted the case to be presented. Before the appeal was actually heard the solicitors came off the record, leaving Mr Mills-Owen to represent himself. Subsequently, the solicitors sought to recover their costs of acting for Mr Mills-Owen. The Costs Master, Master O' Hare, held that the solicitors should not have terminated the retainer for acting on the statutory appeal to the Administrative Court and that they were not entitled to charge their profit costs.
Mr Mills-Owen then appealed and Mackay J sitting with two assessors dismissed that appeal. He held that the solicitors were not entitled to recover their profit costs but that they were entitled to recover the costs of a skeleton argument settled by counsel, as this was a disbursement, and that they were entitled to recover the costs of separate advice given in connection with a matter which the Master had considered a separate matter, namely the roads issue.
On this application Mr Mills-Owen seeks permission to appeal against the judge's order in relation to his cross-appeal. He wishes to appeal on the issue of whether he is liable to pay the cost of counsel's fee for settling the skeleton argument on the statutory appeal, and the solicitors' costs of advising on the roads issue.
In relation to the skeleton argument, the judge looked at criticisms made by Mr Mills-Owen in his letter of 20 December 2005 and held that, while Mr Mills-Owen was entitled to raise the point, the argument amounted to no more than that the client is only obliged to pay disbursements for counsel's fees if he agrees with all the aspects of the advice or other work of counsel. He then continued:
“The authorities to which I have referred deal with the inability of the solicitor to recover profit costs when an entire contract is terminated prematurely without cause. The same arguments are manifestly not applicable to monies which are disbursed for counsel's fees, court fees and the like and the argument against this part of the judge's order is in my judgment misconceived.”
On the second issue, the costs of advising on the roads issue, the judge held that the Master was correct to treat this as a separate matter. He pointed out that the roads issue was not straightforward because it required proof of title, which involved what the solicitors had described as obscure research. The issue was very different from the planning appeal and there were different defendants, and he noted that the solicitors argued that they had achieved success to the extent that an undertaking was received to cease work on the roads. I should add that I have not seen that undertaking. Mr Mills-Owen informs me that further work has been done on the roads and that he does not have a copy of the undertaking to show me. It may have been made orally. In any event, I am not concerned with that undertaking.
At all events, the judge held that the issues on the bill were fully argued below, and that there was plainly an entire contract. He found that on the material before him there was nothing which led him to believe that the Costs Judge was not entitled to reach his. He was not impressed by any point on the format of the bills which Mr Mills-Owen sought to develop in front of him. He therefore concluded that the order made was not wrong, and that the appeal against it should be dismissed. The cross-appeal failed as I have said save to the extent of two sums which I need not mention which are set out in paragraph 34 of the judge's judgment.
The matter then came before the Vice President of the Court of Appeal, Waller LJ, on paper. In relation to counsel's fee, he dismissed the application for permission on the ground that the cost was properly incurred by the solicitors and payment of it gave rise to no profit to the firm. He also refused permission in respect of the work on the roads issue. He noted that Mr Mills-Owen relied on a letter from Richard Buxton and Co solicitors of 10 November 2005, and he said that his reading of the letter was that the respondent had asked the applicant to consider two alternatives to seeking an injunction. He therefore held that he had no basis on which to grant permission to appeal.
I intend to take the two issues separately. On the question of the skeleton argument, Mr Mills-Owen submits that his solicitors knew that the skeleton argument was not factually accurate. However, on my request for an example of the inaccuracy, Mr Mills-Owen submitted that he would need time to produce any examples of the inaccuracies. He submits that the fundamental principle is that the lawyer should present the truth of the matter and that it should be for the solicitors in any event to show that what is stated in the skeleton argument is correct, and that therefore it is not a matter which he has to deal with. On this issue I note that at the end of paragraph 33 of the judge's judgment, in the sentence which I have already quoted in full, the judge assumed that the argument on profit costs would not apply to disbursements, and my Lord, Waller LJ proceeded on the same basis.
I have considered two of the authorities cited by the learned judge, and as far as I can see they do not refer to disbursements as such, or, therefore, to the position about disbursements which the solicitor has made prior to wrongly terminating his retainer. In those circumstances in my judgment there is a point of law on which I should give permission to appeal, namely whether if, in circumstances such as these, a solicitor ceases to be entitled to recover his profit costs he can recover disbursements. I give permission on that issue.
As to the other issue as to the inaccuracy of the skeleton argument, I will adjourn the application to the hearing of the appeal itself so that the court can then decide if it wishes to hear any argument on that point. I should say for my own part that I am not presently persuaded that the proposition relied on by Mr Mills-Owen, that the lawyer should show that the skeleton argument was accurate, is correct, and it seems to me that Mr Mills-Owen ought to be able to produce some examples. I am sorry that he has not been able to do so today; I quite understand. But I would encourage him to produce some examples before the hearing of the appeal.
That leaves the roads issue point. The position here is that the Master's judgment, which I have and have read, does not deal with this issue, and Mr Mills-Owen does not have a copy of the Master's ruling on the roads issue. I have therefore not been able to satisfy myself that there is any point remaining outstanding on this issue. As it seems to me, all the arguments on the roads issue which could have been raised were raised below. They were considered by the Master and then by the judge and were rejected. In those circumstances there could be no basis for me giving permission on the basis that there is some important point of principle or practice on this matter. The position, as it seems to me, is that the matter has already been fully considered by the court, and Master O' Hare must have been satisfied that the bill was properly charged for the work which Mr Mills-Owen instructed Richard Buxton and Co.
Mr Mills-Owen has submitted to me that he did not have the assessment bundle at the hearing before the Costs Judge, but he tells me that to the best of his recollection he made these points to the Master. They must, therefore, have been considered, and there is no basis on which I can give permission on those points.
So that is my ruling on this application. I give permission on the limited basis identified above. I have stood over the remainder of the application about counsel's skeleton argument to the appeal, and I have refused the application in relation to the roads issue.
Order: Application granted in part.
[2010] EWCA Civ 122
Mr Justice Mackay
Master O'Hare
Before: The President of the Family Division
Lord Justice Dyson
and
Lord Justice Maurice Kay
Case No: A2/2008/1986
A2/2008/2033
07/P8/1251
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
Richard Buxton for the Appellant
Mr Mills-Owens appeared in person
Richard Drabble QC and David Holland (instructed by Mills & Reeve) for the Intervener
Hearing date: 9 th February 2010
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