Mr Jugmohan Boodia v Richard Slade T/A Richard Slade & Company Solicitors
| Jurisdiction | England & Wales |
| Judge | James |
| Judgment Date | 24 August 2022 |
| Neutral Citation | [2022] EWHC 2311 (SCCO) |
| Docket Number | SCCO Ref: JJ1606313 |
| Court | Senior Courts |
[2022] EWHC 2311 (SCCO)
COSTS JUDGE James
SCCO Ref: JJ1606313
SC-2016-DAT-006201
IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE
Thomas More Building
Royal Courts of Justice
London, WC2A 2LL
Mr Mark Carlisle (instructed by W Davies Solicitors) for the Claimants
Mr Ben Williams QC (instructed by Richard Slade and Co Solicitors) for the Defendant
Hearing dates: 11 December 2020, 10 June 2022
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.
COSTS JUDGE James
Introduction
This matter was first heard as long ago as 11 December 2020 and I apologise sincerely for the lengthy delay in producing this Judgment. Several factors, including the global pandemic, have been involved, but the parties deserved the certainty of a decision much sooner than this and have been (quite rightly) anxious to hear from me. In fact, as will become clear, a further Hearing took place last week (10 June 2022) and that Hearing has moved matters forward significantly, but that is really by a side wind and in no way compensates for much less excuses the delay.
The application for detailed assessment was issued over four years ago, in November 2016 and relates to Bills going back to February 2013, issued under a retainer agreement entered into in January of that year. The case has already been the subject of repeated hearings in the Senior Courts Costs Office, as well as successive appeals to the High Court, the Court of Appeal and (abortively as permission was refused) to the Supreme Court: see paragraph 6 below for the substance of that Appeal.
On 11 December 2020 I had to deal with the ‘Preliminary Issue’ as defined at numbered paragraph 1 of the Order of 22 June 2020 [139 1], namely:
a. whether the Claimants signed the Retainer with informed consent to the provisions within the retainer providing for interim statute Bills; and
b. if they did not, whether, for this reason, the Defendant's invoices, either individually or collectively, are or are not Bills for the purposes of s.70 of the Solicitors Act 1974.
I was also being asked to address liability for the costs for the period from 6 December 2019 to 22 June 2020 (which were reserved in paragraph 5 of the same Order at [140]) and summarily to assess the Claimants' costs of the Third-Party Debt Order proceedings, including the Claimants' application to dismiss the TPDO, pursuant to paragraph 3(ii) of Master McCloud's Order of 27 August 2020 [238].
As I understood it at the Hearing on 10 June 2022, these issues are, if not in abeyance, certainly not to be addressed in this Judgment. There was mention (as long ago as 11 December 2020) of an Appeal against Master McCloud's Order (and indeed to a stay by Swift J [242]). Further, both parties recognise that even this Judgment will not be the end of this matter. Therefore, there was agreement that these issues may be held over until a later Hearing, to be listed in early course. The intention is that the hand-down of this Judgment should be used as an opportunity to list and perhaps give Directions for any consequential matters (including these issues) at a convenient date.
The Preliminary Issue and whether it was still open for consideration by this Court
I had determined that the contract of retainer in this case allowed for the delivery of interim statute Bills (my Judgment of 17 March 2017 [135] and Written Reasons dated 5 June 2020 [180]). I had, however, decided that the Bills in question were not interim statute Bills, because of the separation of
costs versus disbursements so that a Bill to a certain date, was not necessarily a Bill for everything due and owing up to that date, I was, ultimately, overturned on Appeal and that point is therefore no longer open for argument, as I believe is now common ground between the partiesThe question of whether other factors operate to prevent the Bills from being interim statute Bills, remains a live issue between the parties and is one which (again, as I understand it) the Claimants wish to pursue whichever way I decide the Preliminary Issue: at the most recent Hearing Mr Mark Carlisle for the Claimants made reference to the possibility of a Chamberlain Bill, as well as the possibility of ‘Special Circumstances’ existing so as to enable the Bills to be opened to scrutiny even if they were interim Statute Bills. Mr Benjamin Williams QC accepts that a small number of the Bills are sufficiently proximate in time to the bringing of this claim, so that a claim under ‘Special Circumstances’ would be technically possible although this has yet to be argued before the Court.
The Preliminary Issue is as stated at numbered paragraph 1 of the Court's order of 22 June 2020 [139–140] and repeated at paragraph 3 above. The Defendant's original submissions (in December 2020) were that the Preliminary Issue goes to whether the Defendant's retainer allowed it to submit interim statute Bills; if ‘informed consent’ is a relevant consideration in these circumstances (which the Defendant disputes), the absence of informed consent would mean that the Defendant was not (in contract) entitled to render interim statute Bills.
A complicating factor is that the Defendant asserted that here, the Court had already decided that the Defendant's retainer did permit it to render interim statute Bills and the new point therefore cut directly across that decision and was an invitation to the Court to reverse its previous decision on a ground not previously raised, adding that (for the reasons that follow – see paragraphs 38 to 56 on Res Judicata/Issue Estoppel, Waiver and Procedure below) that was impermissible.
The second limb of the Preliminary Issue (per the Defendant) addressed not the character of the Bills, but to the character of the contractual relationship between the Claimants and the Defendants: was it a relationship which permitted the Defendant to raise interim statute Bills? The answer to the Preliminary Issue would turn not on the Bills, but on events antecedent to the Bills, namely the written terms of retainer, and the information available to the Claimants before it was executed: the Bills themselves need not even be looked at for the purposes of determining the Preliminary Issue.
Hence (per the Defendant) the Preliminary Issue went to the question of whether the Defendant was contractually entitled to render interim statute Bills, which the Court had already decided that it was and thus again the Preliminary Issue invites the Court to depart from its previous decision on a ground not previously raised. The Defendant asserted that the Claimants recognised that their new argument addressed not the character of the Bills, but the terms of the retainer, having repeatedly referred to it in shorthand as ‘the Vlamaki point’ (that being a reference to Vlamaki v Sookias & Sookias [2015] EWHC 3334) which was, insofar as material, concerned solely with the interpretation of a written retainer.
Per the Defendant, not only is this obvious from part B of the judgment (upon which the Claimants rely on for present purposes) but Walker J also states in terms, in the first paragraph of the judgment, that his conclusion turns on the true meaning of written documents, namely the retainer. It is against this background that the Defendant contends that the Claimants' new point is no longer open to them at this level. Per the Defendant, the reference to a new Preliminary Issue involves a startling misnomer given proceedings to the threshold of the Supreme Court (on the question of whether separate Bills for Costs and Disbursements could be interim statute Bills).
Hence, per the Defendant, the ‘so-called’ Preliminary Issue is one which, if accepted, would render almost the whole of the proceedings to date nugatory as those proceedings concerned whether the Bills subject to the application constituted interim statute Bills as a matter of law, to which the Court of Appeal answered that they did. The Preliminary Issue essentially contends that that enquiry (going as far as the Supreme Court) was otiose since, whether the Bills were or were not interim statute Bills, the Defendant had no contractual right to render them (as the Claimants never gave ‘informed consent’ to the Defendant's contractual right to raise interim statute Bills).
Per the Defendant, this argument would be legally and factually wrong as no test of ‘informed consent’ applies before clients are contractually bound by their Solicitors' terms of appointment and as such, ordinary contract law applies: here the Claimants freely entered into a contract which allows interim statute billing, plus the relevant contractual terms were made clear to the Claimants so that there is no arguable issue of a lack of informed consent on the facts in this case.
The Question of Informed Consent and Fiduciary Duty – Defendant's case
Per the Defendant, the Claimants' Preliminary Issue is misconceived as the issue of informed consent has no place in determining whether the terms of a retainer are effective. ‘Informed consent’ is an issue which arises in the law of fiduciary obligations and in certain transactions with a fiduciary, ‘informed consent’ is necessary for the transaction to be effective, due to the usual principle that a fiduciary cannot place itself in a conflict of interest with, or make a profit from its fiduciary relationship with, its principal. A principal (here, the Claimants) can nonetheless allow these things, but will only be bound by its agreement to do so if the fiduciary (here, the...
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