Piyush Lalji Shah and Another v Brian Breed and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Globe |
| Judgment Date | 15 February 2013 |
| Neutral Citation | [2013] EWHC 232 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: W1209107 |
| Date | 15 February 2013 |
[2013] EWHC 232 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ON APPEAL FROM THE SENIOR COURT COSTS OFFICE
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Globe
Master Haworth (costs Judge sitting as an assessor)
Mr Colin Jaque (Solicitor sitting as an assessor)
Case No: W1209107
Aidan Briggs (instructed by Carlsons & Co) for the Defendants / Appellants
Geoffrey Mott (instructed by CS Law) for the Claimants / Respondents
Hearing date: 4th February 2013
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.
This is an appeal from the detailed assessment decision of Deputy Master Rogers on 7 th and 8 th March 2012 in relation to a boundary dispute action in respect of which the respondents, as claimants, were successful before Her Honour Judge Marshall QC in January 2007.
The appellants were refused permission to appeal by Deputy Master Rogers. They appeal with the permission of Mr Justice Eady dated 15 th June 2012.
The facts
The action has a long history, the full details of which are set out in the judgments of Her Honour Judge Marshall QC dated 30 October 2006 and Deputy Master Williams in October 2009. For the purposes of this appeal, the relevant facts are as follows.
On 19 th December 2002, the respondents sought a declaratory judgment in a boundary dispute in relation to the respondents' rights of access across the appellants' premises at Hindes Row, Harrow.
The case was listed for trial for five days commencing on 2 nd February 2005 before His Honour Judge Wakefield. After discussions between the parties on the first day of the hearing, it was believed that agreement had been reached. No hearing took place. The parties withdrew to draw up a consent order to be presented to the judge. It was never presented to the judge because the agreement was not signed and concluded. The respondents terminated the retainer of their then solicitors, Shah and Burke, and instructed new solicitors, Ved and Co, who acted for them until October 2012, since when they have been represented by CS Law.
In September 2006, there was a five day trial. The respondents succeeded. The complex issues that were considered are reflected in a forty page judgment of the trial judge, Her Honour Judge Marshall. Upon judgment being entered for the respondents, there is an agreed minute of the Order dated 18 th January 2007 wherein, save for discrete orders for the respondents to pay the appellants' costs in respect of an interlocutory order made on 13 th July 2005 and no order for costs in relation to some other interlocutory matters, the respondents were awarded costs against the appellants subject to a detailed assessment and subject to any costs before 13 th March 2005 being subject to a 20% reduction.
On 7 th November 2007, the respondents' bills of costs were served. Two separate bills were served, one for Shah and Burke's costs and one for Ved and Co's costs. Shah and Burke's bill totalled £35,037.56. Ved and Co's bill totalled £100,213.06 The detailed assessment was eventually listed for hearing before Deputy Master Williams in May 2009.
Between 7 th November 2007 and May 2009, the appellants served Points of Dispute and a Part 18 Request for Further Information. Both of the respondents' firms of solicitors served replies, and the appellants served Amended Points of Dispute. During the course of this procedural history, on 27 th February 2007, there was a fire at the offices of Shah and Burke which destroyed paperwork associated with the case.
Upon a preliminary issue, prior to the detailed assessment being able to be carried out before Deputy Master Williams, the appellants, as paying parties, sought an order that the entirety of the respondents' bills of costs be struck out or disallowed and/or that at least the bill of Shah and Burke be struck out or disallowed. In the course of the application, very serious allegations were made by the appellants against both firms of solicitors who had acted for the respondents, including allegations of collusion, concealment contrary to a solicitor's duty to the court, and editing of letters to give a false impression to the court about the firm's billing practices. The underlying point of importance was the allegation that there had been a breach of the indemnity principle in that the respondents had never paid and were not liable to pay any costs to Shah and Burke.
Deputy Master Williams heard evidence over three separate days in April, June and August 2009. She handed down a thirty page closely typed judgment on 2 nd October 2009 wherein she indicated that she had not been persuaded that any of the allegations had been made out. She rejected all of the appellants' arguments and directed that the case be listed for a detailed assessment of the bill. She reserved the assessment to herself. In the event, that proved to be impossible. It was eventually listed and heard before Deputy Master Rogers on 7 th and 8 th March 2012.
At the hearing, three bills were assessed, which were Shah and Burke's bill of £35,037.56, Ved and Co's original bill of £100,213.06 and Ved and Co's bill of £24,150.79 for the costs of the preliminary hearing before Deputy Master Williams in 2009.
At the commencement of the hearing before Deputy Master Rogers, the appellants applied for permission to appeal the decision of Deputy Master Williams. The application was refused on the grounds that it was too late to make the application two and half years after the hearing and that it also had no reasonable prospect of success. The application has not been renewed.
Deputy Master Rogers then considered the proportionality of the bills. He decided that, by reason of the complexity of the case in relation to both facts and law, the costs appeared proportionate and as a result of which there was no need to apply the necessity test laid down in Lowndes v The Home Office [2002] EWCA Civ 365, [2002] 4 All ER 775.
In a fully reasoned judgment, Deputy Master Rogers explained that he had considered various objections in the appellants' Points of Dispute as amended. The first related to an objection to pay the costs of the abortive trial in 2005 in respect of which the appellants claimed that His Honour Judge Wakefield had made no order for costs. The second related to an objection to paying any of the costs of Shah and Burke. The third related to an objection to pay the fees of counsel instructed by Shah and Burke because, although there was a statement that the fees had been paid, no receipted fee-note had been received. The findings made by Deputy Master Rogers were respectively that no such order had been made, the indemnity principle issue had been determined by Deputy Master Williams and no receipted fee-note was required. He indicated that the amended Points of Dispute raised general issues only and not specific issues with individual items.
The appellants applied to serve re-amended Points of Dispute. The respondents objected. Deputy Master Rogers refused to allow the amendments because they were being made too late in the day, they amounted to an attempt to re-open the whole Shah and Burke bill which had already been subject to a specific 20% reduction in the order of Her Honour Judge Marshall in January 2007, they could have been raised at any time during the length of time that had elapsed since the order of Deputy Master Williams in October 2009 and they would necessarily result in an adjournment of the detailed assessment hearing.
Thereafter, applying a test of reasonableness to the bills, Deputy Master Rogers assessed the bills and made various reductions. After correction for minor typographical errors, and exclusive of interest payments, costs certificates were issued in the following sums:
Grounds of Appeal
| Bill | Assessed | Costs | Totals | |
| Shah and Burke | 35,037.56 | 28,030.05 | 6,243.00 | 34,273.05 |
| Ved & Co | 100,213.06 | 79,500.00 | 7,569.58 | 87,069.58 |
| Ved & Co | 24,150.79 | 21,446.39 | 195.00 | 21,641.39 |
There are seven grounds of appeal.
Grounds one and two
The first two grounds were abandoned on the morning of the appeal hearing. It is worthy of note that the second ground of appeal was that His Honour Judge Wakefield had made no order for costs in 2005.
Grounds three to six
Grounds three to six cover the same issue of the wrongful exercise of discretion bearing in mind four separate but intertwined aspects of the bills. In ground three, it is contended that Deputy Master Rogers wrongly exercised his discretion in finding that the bills were not apparently disproportionate, in refusing the individual points in the appellants' amended Points of Dispute, and in...
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