Protopapas Solicitors (A Firm) v Mr John Michaelides
| Jurisdiction | England & Wales |
| Judge | Leonard |
| Judgment Date | 13 November 2023 |
| Neutral Citation | [2023] EWHC 2929 (SCCO) |
| Court | Senior Courts |
| Docket Number | Case No: C29YP942 |
[2023] EWHC 2929 (SCCO)
COSTS JUDGE Leonard
Case No: C29YP942
SCCO reference: SC-2021-BTP-001131
IN THE SENIOR COURTS COSTS OFFICE
FROM THE COUNTY COURT AT
MAYORS & CITY OF LONDON
Thomas More Building
Royal Courts of Justice
Strand, London WC2A 2LL
Vrahimis Orphanou for the Claimant
Jamil Ahmud for the Defendants
Hearing date: 23 May 2023
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 Leonard
This short judgment concludes a common law assessment between the Claimant solicitor and the Defendant clients, as ordered on 4 January 2021 by HHJ Hellman on giving judgment for the Claimants for outstanding fees. It addresses the summary assessment of the costs of assessment, as awarded to the Claimant by this court on 23 May 2023, and as addressed by written submissions subsequently filed by the parties.
General Points: Basis of Assessment and the Scope of the Costs Award
The Claimant asks for the costs of the assessment process to be assessed on the indemnity basis, on the grounds that the Claimant has achieved an outcome that is comfortably in excess of an offer of settlement made by the Claimant to the Defendants on 29 July 2021.
I have already made an order for costs which does not specify the indemnity basis and which, by virtue of CPR 44.3(4), is accordingly an order for assessment on the standard basis. It is too late to ask for costs on the indemnity basis, and I would not in any event make such an order only because a party has beaten their own offer.
Contrary to the Claimant's submissions, the usual standard basis principles must apply. The fact that I have been conducting a common-law assessment between solicitor and client does not make any difference. The Defendant is entitled to raise proportionality, and any element of doubt as to reasonableness and proportionality must be resolved in favour of the Defendants as paying parties.
That is not to say that the offer of 29 July 2021 is without significance. I will refer back to it when it comes to dealing with proportionality. It also has some bearing on the fact that the Defendants have submitted that the costs of the last hearing before me on 23 May 2023 should turn on the outcome of this summary assessment, because of an offer made by the Defendants as to the cost of the assessment process.
Again it seems to be to be too late to raise that, as I have already made an order for the costs of the assessment process to be paid without reservation (other than for previous orders made). If the Defendants wanted me to reserve the costs of the hearing of 23 May, they should have done so at that hearing.
That aside, given that the entire assessment process could have been avoided had the Defendants accepted an offer made in July 2021 on the subject matter of the assessment and which would have resulted in a better outcome for them, it does not seem to me to be open to them to rely upon a discrete offer as to the costs of assessment, evidently made towards the end of the process. The Claimant is right in saying that because much of the day was taken up with unsuccessful argument from the Defendants (in particular resisting payment of the Claimants' costs of assessment) we lost the opportunity on 23 May to complete the assessment process, including the summary assessment now addressed by this judgment.
For those reasons, the costs of 23 May should in any event be awarded to the Claimant.
On circulating this judgment in draft form, I gave the Defendants the opportunity to make further submission on that conclusion, treating it as provisional pending such submissions. None have been received.
In fact, the Defendants have not responded at all to the draft judgment, to the court's invitation to offer further submissions, nor to the directions given for letting the court know whether they wished to attend the handing-down (they have not). Only the Claimant has responded, appropriately copying its communications and submissions to the Defendants, but, I am advised, receiving no response.
General Points: Mr Orphanou's Fees
The Claimant was represented in the assessment proceedings by Mr Orphanou, who is both a barrister and a costs draftsman. The Defendants take issue with the fact that Mr Orphanou charged for some work at £125 per hour and for other work at £200 per hour. They contend that his hourly rate should be limited to £125.
Mr Orphanou rightly contrasts his hourly rates with the £300 per hour claimed by the Defendants for their solicitor, Mr Ahmud. There is no reason for Mr Orphanou's hourly rate to be restricted to £125.
According to Mr Orphanou's submissions, he charged a rate for advocacy of £200 per hour (discounted from £300 per hour) and for documentary work such as drawing up bill breakdowns, between £125 and £150 per hour. For some work, such as the drawing up of replies, this appears to have been discounted from £200 per hour.
The distinction between advocacy and other costs work is a logical one which I have regularly applied on summary assessment. £200 per hour is a reasonable rate for advocacy by any experienced, qualified costs advocate and £125 to £150 per hour a reasonable rate for documentary work undertaken by an experienced costs professional on behalf of central London solicitors, who would otherwise have had to undertake it themselves.
Insofar as Mr Orphanou's claimed fees are consistent with those rates and are otherwise reasonable, they have been allowed. I should add for the avoidance of doubt that that charges rendered on a percentage basis have been allowed only on the basis of reasonable time at a reasonable hourly rate.
Other General Points
Mr Orphanou explains that the Claimant partnership is no longer in practice or registered for VAT, in consequence of which it cannot recover VAT. I see no reason to dispute that, and I can allow VAT on the assessed costs.
I do not accept that the deployment of various fee earners by the Claimant was generally duplicative or disproportionate. Mr Orphanou explains that almost all the work was undertaken in fairly standard fashion by one grade A fee earner with support from various grade D fee earners (with very limited involvement at grade C, which I have in any case disallowed). There is nothing remarkable about that. Any real element of duplication is addressed in my detailed findings.
Nor do I accept that any of the grade A fees claimed by the Claimant should have been undertaken at grade B rates. The day-to-day work for the Defendants was undertaken by an experienced grade A fee earner with costs experience, and the Claimant was entitled to commit similar resources to the case.
I take the view that the claimed grade A hourly rates of between £350 and £395 are reasonable for central London solicitors working between 2021 and 2023 but I would allow the grade D time at the £140 per hour proposed by the Defendants.
Turning to the detailed comments on the Claimant's two costs schedules, I shall follow the order of the parties' submissions, but this being a summary assessment I do not propose to provide detailed reasoning for every decision.
Schedule Dated 4 November 2022
Attendances on opponents: the Claimant's figures do not have to match the Defendants' records, but this does seem high. 4 hours are allowed at grade A, and one hour at grade D.
Attendances on others: Mr Orphanou has explained that the wide-ranging points raised by the Defendants justified liaison with a former/rejoining employee. Even so the time is beyond what can be allowed on the Standard Basis and would seem to reflect that the papers were not in good order (this is addressed in more detail below). I have allowed 4 hours at grade A and 30 minutes at grade D.
Documents: most of the grade A time is reasonable but as the Defendants say, there was no need for a Notice of Commencement. 5.3 hours are allowed at grade A.
I have disallowed the grade C time on the basis that it should not have been necessary, for the purposes of preparing detailed breakdowns, to undertake a separate exercise of collating records which should already have been sufficiently good order to allow the work to be done. Of the grade D time, I have disallowed time for working on the Replies (for which I have already allowed the grade A time in full).
I am sorry to say that I found the main e-bundle prepared for the November 2022 hearing to be of no real assistance. My 2,939 page copy has no bookmarks or index and the papers are not organised in any useful way. As I recall Mr Orphanou could not, in the course of the hearing, use it to take me to documents pertinent to the points of dispute under discussion. I am not satisfied that any real fee-earning, useful, analytical work went into the creation of that bundle and I do not believe that the bundle proved to be of any real value. Accordingly I have disallowed the preparation time.
I have allowed an hour for preparing a separate indexed bundle of orders, bills etc, which was in good order. I also think that some time by the grade D fee earner on the costs schedule was justified. Total grade D time allowed 1.5 hours.
Attendance at hearing: I agree with Mr Ahmud that Mr Orphanou should not have needed anyone with him, nor did the attending fee earner make any contribution to the proceedings. The court's findings on assessment are normally noted on the breakdowns or bills by cost advocates without further assistance from a third party. I do not regard the transportation of boxes to court as fee-earning work, and in...
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