Re Simmons & Politzer
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROMER,LORD JUSTICE SOMERVELL |
| Judgment Date | 21 July 1954 |
| Judgment citation (vLex) | [1954] EWCA Civ J0721-1 |
| Court | Court of Appeal |
| Date | 21 July 1954 |
[1954] EWCA Civ J0721-1
In the Supreme Court of Judicature
Court of Appeal
Lord Justice Somervell
Lord Justice Birkett and
Lord Justice Romer
Re Taxation of Costs
Re Simmons & Politzer
MR GILBERT PAULL, Q.C. and MR J.T. PLUME (instructed by Messrs. Ernest Simmons & Brio S. Politzer) appeared as Counsel on behalf of the Appellants
MR CYRIL HARVEY, Q.C. and MR F.C. CONINGSBY (instructed by Messrs. Oswald Hickson, Collier & Co.) appeared as Counsel on behalf of the Respondents.
LORD JUSTICE SOMERVELL: I will ask Lord Justice Romer to read the Judgment of the Court.
This an appeal by Messrs. Simmons & Politzer (hereinafter referred to as "the Solicitors") from an Order of Mr JusticeGlyn-Jones made in Chambers on the 15th March, 1954, whereby he set aside an Order of Master Clayton and ordered that the Solicitors should deliver to the Applicant, Mr R.F.H. Norman, bills of costs in all matters in which the Solicitors had been instructed as solicitors for the Applicant and that the bills, fees, charges and disbursements so delivered be referred to the Master to be taxed.
Prior to last January the Solicitors had, for some years, acted professionally for the Applicant in various matters including three actions which are referred to hereafter collectively as "the Conquy litigation". In addition to these actions they had acted in some business of a non-contentious character (or mainly so) which was referred to in argument as "the Holdron matter". On the 27th January, 1953, Mr Norman wrote to the Solicitors asking them to send him a complete statement of account and they forwarded to him, two days later, a summarised bill headed "Yourself and Conquy Costs". This document, which showed a balance of £5112. 6s. 11d as due to the Solicitors, was not drawn in sufficient detail to constitute a proper bill of costs.
The statement was accompanied by a letter, also headed "re Conquy", in which the Solicitors wrote: "we might mention the fact that having regard to your promise to be generous in any future matter if we merely charged a nominal fee for the Holdron matter, plus disbursements, we have not yet rendered you a bill in respect of that matter, which we may say will amount to a considerable sum. We have, however, endeavoured to draw our bill in the Conquy matter upon a fair and reasonable basis only but we would like you to know that provided a speedy and reasonable settlement thereof be made we shall keep to the understanding regarding Holdron but we must, of course, reserve our right also to deliver a bill in that matter for our proper charges".
At some later date the Solicitors rendered to the Applicant a "Cash Account" showing a balance due to them of £1,678 odd. This account, which was brought down to July, 1953, was admittedly inaccurate in certain respects.
Apparently towards the end of 1953 and early in 1954 discussions and negotiations proceeded between the Appllcant and the Solicitors with regard to the amount which they claimed was due from him for costs. The Applicant was dissatisfied with the Statement & Cash Account which they had delivered to him although he did in fact pay over £3,000 on account. On the 18th January, 1954, the Solicitors were served with Notice of Change of Solicitors, the Applicant having appointed Messrs. Oswald Hickson & Collier to act for him in their place in connection with the Conquy litigation.
On the 28th and 29th January, 1954, meetings took place between Mr Simmons, who is a partner in the firm of Messrs. Simmons & Politzer, and MrCarter-Ruck, who is a partner in Messrs. Oswald Nickson & Collier, on behalf of the Applicant. At or shortly after these interviews the Solicitors proffered a further Statement of Account which showed a sum of £1,499. 6s.3d as owing to them. This amount was arrived at by adding to the £5,112. 6. 11d shown due by the earlier Statement of January, 1953, a further sum "Account rendered to January, 1954" of £210. 6. 10d and deducting £3,198. 6s. 8d "Paid on account" and £625 "Amount received from Lord Camrose". If this sum of £625 be added to the £1.499. 6s. 3d the result/is a total of £2,124. 6s 3d. A list of cheques which the Solicitors had received from the Applicant was attached to the Statement.
The Summons in the present proceedings was issued on the 29th January, 1954, but it was not served upon the Solicitors until the 4th February. By it the Applicant asks "that the bills of fees, charges and disbursements delivered to the Applicant by the … Solicitors be referred to the Master to be taxed … and that upon payment by the Applicant of what(if anything) may appear to be due to the said Solicitors the said Solicitors do deliver up to the Applicant, or as he may direct, all deeds, books, papers and writings in the said Solicitors' possession, custody or power belong to the Applicant". This delivery up of documents was a matter of imperative urgency to the Applicant in connection with the Conquy litigation, which was still pending, and he would be in a position of considerable difficulty if the Solicitors insisted on retaining them under their lien for costs.
Affidavits were sworn by both sides on the hearing of the Summons. This evidence disclosed an important divergence of view on what had happened at the two interviews which we have mentioned and, in a less degree, at two subsequent interviews which took place between the parties' representatives on the 1st and 2nd February, respectively. One thing, we think, at least is clear and that is that at none of the interviews were the Solicitors informed that the Summons for taxation had been issued.
At the meeting on the 2nd February (at which the Solicitors were represented by the other partner, Mr Politzer, owing to Mr Simmons' absence from illness) Mr Carter-Ruck produced a cheque for £1,074. 6s. 3d. and two documents, namely, a receipt and a letter which had been drafted by him or his firm. The letter was in the following terms: "Dear Sirs, R.F.H. Norman, Arrowbrook Overalls Ltd. Marylan Overalls Ltd. We new enclose cheque value £1,074. 6s. 3d. which, after taking into account the release of the sum of £425 previously held to Lord Camrose's account, (and to which we confirm Lord Camrose has agreed) represents the balance due on your account with Mr Norman. Kindly let us have your formal receipt in full and final settlement of all outstanding costs. Yours faithfully, Oswald Hickson, Collier & Co." The receipt was as follows: "Received by Messrs. Ernest Simmons & Eric B. Politzer of 8, Lygon Place, Westminster, S.W.1, the sum of £1,499. 6s. 3d. (One thousand four hundred and ninety nine pounds six shillings and three pence)in full discharge of all claims costs disbursements and other moneys owing to Messrs. Ernest (Simmons & Eric B. Politzer by Roland Frank Holdway Norman of Cooill Vane, Second Avenue, Douglas, Isle of Man. Dated this 2nd day of February, 1954". Mr Politzer signed this receipt and thereupon handed over to Mr Carter-Ruck all of the Applicant's documents (except for a few irrelevant letters) which his firm had in their possession.
The Solicitors rely on this receipt and letter of the 2nd February, 1954, as constituting a written agreement within sections 57 and 59 of the Solicitors Act, 1932, and as a sufficient answer therefore (by reason of section 62) to the Applicant's prima facie right to have a bill of costs delivered and to have it taxed under section 66 of the Act. The Solicitors' case, in brief, as appears from the affidavit of Mr Simmons sworn on the 16th February, 1954, is that after various ways of dealing with their costs at the interviews on the 28th and 29th January, 1954, had been discussed he made an offer to Mr Carter-Ruck that "if the Applicant would pay the balance in full of what we claimed in respect of the Conquy actions we would accept that sum in full satisfaction of all our outstanding charges including (inter alia) those in the Holdron matter"; that that offer ripened into the agreement upon which his firm relies and that on the faith of that agreement Mr Politzer released the Applicant's papers. He also states (and this is not, we think, in dispute) that on the 29th January Mr Carter-Ruck's Cost Clerk was given inspection of the Applicant's papers which the Solicitors held. On the other hand Mr Carter-Ruck says in his affidavit that at the interviews on the 28th and 29th January he explained that nothing was owing to the Solicitors by the Applicant in connection with the Holdron matter as it had been agreed that only disbursements should be charged and these had been paid long ago; that Mr Simmons told him at the first interview that there was a balance due to his firm of £1,700 but that at the second interviewhe corrected this figure to £1,200; and that as he (Mr Carter-Ruck) was extremely anxious to recover for the Applicant the papers and documents which the Solicitors held he told Mr Simmons that his only course would be to arrange for payment of this sum of £2100 in full and then to take the whole matter to taxation, a proposal which, he says, Mr Simmons accepted as satisfactory. The payment of a sum of £2,124 odd was in fact made and Mr Carter-Ruck says that the payment was in pursuance of this proposal. The sum of £2,124 so paid included the amount of £625 described in the second Statement of Account as "received from Lord Camrose", and a further sum of £425 which had also been previously held to Lord Camrose's account but which he agreed to release and did release to the Solicitors by virtue, presumably, of some arrangement with the Applicant. When this Summons was before the Master he took the view, we were told, that the receipt...
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