Moat Housing Group-South Ltd v Harris and another (No 2) (Practice Note)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE CHRISTOPHER CLARKE |
| Judgment Date | 20 December 2007 |
| Neutral Citation | [2007] EWHC 3092 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: CC/2007/APP/0359 |
| Date | 20 December 2007 |
[2007] EWHC 3092 (QB)
IN THE HIGH COURT OF JUSTICE
(Queen's Bench Division)
Clifford's Inn, Fetter Lane
London, EC4A 1DQ
Mr Justice Christopher Clarke
Case No: CC/2007/APP/0359
Martyn McLeish (instructed by R.J. Hawksley & Co) for the Claimants
Philip Glen (instructed by Dutton Gregory) for the Defendant
Hearing dates:7 th DECEMBER 2007
MR JUSTICE CHRISTOPHER CLARKE1 This is an appeal from a decision of 31 st May 2007 of Master Haworth, the costs judge, on a preliminary issue in relation to the assessment of costs. Master Haworth granted permission to appeal on the grounds that the appeal raised a novel point on the interpretation of the CPR in relation to the commencement of a detailed assessment. The costs in question were awarded to two successful appellants to the Court of Appeal. The first appellant, Carl Harris (“Mr Harris”), was at all relevant times the partner of the second appellant, Susan Hartless (“Ms Hartless”). The second appellant is an assured tenant of property belonging to the respondent, Moat Housing Group-South Ltd (“Moat House”). I sat for the hearing of the appeal with two assessors – Master O' Hare and Mr Simon Kenny. I was greatly assisted by the discovery by Master O' Hare of an order of the Court of Appeal, numbered 2005/0038, to which reference had not previously been made, and by the contribution of both assessors to the exchanges with counsel in the course of the argument.
The history
2 On 29 th October 2004 Moat House sought and obtained from a district judge in the Aldershot & Farnham County Court a without notice Anti-Social Behaviour Injunction ('ASBI') against both appellants, and others, pursuant to the provisions of the Housing Act 1996. The order provided, inter alia, for the appellants and their four children, of whom Mr Harris is the father, to be evicted from the property and from a substantial part of Liphook by 6.00 pm. That order, in so far as it excluded the appellants from the property and from part of Liphook, was stayed by Burnton J at about 1.50 a.m. on 30 th October.
3 On 3 rd December 2004 Moat House obtained a possession order against the second appellant and an Anti-Social Behaviour Order ('ASBO') against both appellants in the Southampton County Court. The possession order was an immediate one. At this stage both appellants were represented by R J Hawksley & Co. ('RJH').
4 The appellants appealed the orders made in the possession proceedings, permission to appeal having been granted by Lord Justice Brooke on 16 th December 2004. I call this “the possession appeal”. Although the ASBI was in effect spent, on 17 th December 2004 the Court of Appeal indicated a willingness to hear a leap frog appeal out of time against it, so that the exercise of the Court's jurisdiction under the 1996 Act on without notice applications could be examined. On 30 th December 2004 the district judge who had granted the injunction of 29 th October 2004 granted Ms Hartless permission to appeal out of time and directed that the appeal should be heard by the Court of Appeal. I call this “the injunction appeal”. The notice of appeal was issued on 10 th January 2005.
5 On 24 th December 2004, the second appellant, having obtained legal aid, instructed South West Law ('SWL'). On the same date the first appellant entered into a conditional fee agreement with RJH. He later entered into a further such agreement with Counsel. On 20 th January 2005 both the injunction and the possession appeal came before the Court of Appeal. The Court decided to hear argument on the injunction appeal first and judgment was reserved. On 10 th February 2005 the first appellant became entitled to LSC funding and instructed SWL. On 21 st February 2005 notice of the issue of a certificate was given to Dutton Gregory, Moat Housing's solicitors.
6 The possession appeal was heard on 23 rd February. Both appellants were represented by the same Leading Counsel but had separate Junior Counsel. Judgment was given by the Court of Appeal in respect of both appeals on 16 th March 2005. The possession order of 3 rd December 2004 was varied so as to become a postponed order. The ASBO was discharged and an ASBI was substituted. The order of 29 th October 2004 was declared to have been wrongly made insofar as it contained the exclusion provisions to which I have referred.
7 As is apparent from the above summary the appellants have been represented by different firms at different times. At the time of the stay granted by Burnton J on 30 th October and up to 24 th December 2004 they were both represented by RJH. From 24 th December 2004 to 10 th February 2005 the first appellant, Mr Harris, was represented by RJH and the second appellant, Ms Hartless, was represented by SWL. This was the position at the time of the hearing of the injunction appeal on 20 th January 2005. By the time that the possession appeal, which also involved the ASBO, came to be heard, both appellants were represented by SWL.
8 Three orders were drawn up to reflect the decision of the Court of Appeal. The order in the possession appeal, numbered 2004/2666, described both Mr Harris and Ms Hartless as first and second appellant respectively. That order provided that the Respondent should pay the appellant's costs “of this appeal and that there shall otherwise be no order for the costs of these proceedings in the courts below”. In relation to the injunction appeal, for reasons which are not clear, two orders were drawn up. In the first, numbered 2005/0038, Mr Harris is the only appellant referred to. The order declares that the injunction order granted by the District Judge on 29 th October 2004 was wrongly made to the extent that it contained provisions requiring the appellant to leave the property and excluding him from an area in Liphook from 6 pm that evening and a power of arrest was attached. The respondent was ordered to pay the appellant's cost of the application for a stay made to Burnton J on 29 th/30 th October and of the appeal. The second order, numbered 2005/0042, referred only to Ms Hartless as the appellant and was in identical terms to order 2005/0038 (with the substitution of “her” for “him”) save that it included an order for a CLSF assessment of her costs incurred since the grant of her certificate for legal representation in the appeal.
The notices of commencement of assessment of bills of costs and the bills
9 On 14 th June 2005, SWL sent to Dutton Gregory two notices of commencement of assessment of bill of costs, one in respect of the possession appeal, where the costs claimed amounted to £ 45,734.76, and the other in respect of the injunction appeal where the amount claimed was £ 26,898.58. The notice in relation to the injunction appeal named Ms Hartless as defendant. The title of the bill referred to her as the appellant and made no reference to Mr Harris. The notice in relation to the possession appeal named both Mr Harris and Ms Hartless as defendants. The title of the bill referred to Mr Harris as first and Ms Hartless as second appellant. Each notice was accompanied by a bill of costs. The possession appeal bill related to order 2004/2666. The injunction appeal bill related to order 2005/0042.Neither bill referred to order 2005/0038. In the covering letter SWL described the bills as the “Appellants' Bills of Costs”.
10 The notices were in standard form including the words
“Following an order dated 16th March 2005… I have prepared my bill of costs for assessment. The Bill totals [£ 45,734.76] [£ 26,898.59].”
The notices go on to state “You must serve your points of dispute by 5 July 2005 on me South West Law..” They were signed by the solicitor who had acted at SWL. The narrative part of the bills sets out the whole history of the matter. In respect of certain items there was an apportionment as between each bill, and this was noted in the bills. There was, however, no reference (either in the bills or in Counsel's fee notes) to any other form of apportionment e.g. as between solicitors.
11 A certificate as to completeness, signed by SWL, was included in the bills
in the following terms:
“I certify that this bill is both accurate and complete and that in relation to each and every item included in the bill of costs claimed do not exceed the costs which the receiving party/parties is/are required to pay me/my firm”.
12 The respondent submitted Points of Dispute on 5 th July.
The agreement
13 Negotiations ensued between Dutton Gregory and SWL. On 26 th July 2005 SWL wrote to say:
“We have considered your Points of Defence. We are writing to indicate the sums which we would be prepared to accept in settlement of Costs Order (sic) of the two proceedings”
The letter then stated what they were prepared to accept in relation to the possession and the injunction proceedings. On 29 th July Dutton Gregory replied indicating that they were minded to suggest that a “global sum of £ 37,500 plus VAT in respect of both bills may be more appropriate” inclusive of interest.
14 After an intervening letter and conversations Dutton Gregory wrote on 8 th August 2005:
“We refer to our recent telephone conversations, when agreement was reached on the bills of costs in relation to the Court of Appeal hearing”
The sum agreed was £39,298.00 + VAT plus £ 2,000 not subject to VAT for Counsel's fees. On 9 th August 2005 SWL sent their invoice in that amount.
15 At no stage in the correspondence was there any reference to another bill of costs being due to come from RJH. It appears from the witness statement of Ms Hawksley of RJH that RJH and SWL had agreed that there would be two separate bills, one from SWL and the other from RJH. Each of SWL and RJH knew, therefore, that RJH's costs had not been, and were not to be, included within the SWL Bills. Dutton Gregory was not told...
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