Richard John Slade (t/a Richard Slade & Company) v Deepak Abbhi
| Jurisdiction | England & Wales |
| Judge | Russen |
| Judgment Date | 01 March 2019 |
| Neutral Citation | [2019] EWHC 355 (Comm) |
| Docket Number | Case No: LM-2017-000132 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 01 March 2019 |
[2019] EWHC 355 (Comm)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
CIRCUIT COMMERCIAL COURT (QBD)
Rolls Building
Fetter Lane
London, EC4 1NL
HH JUDGE Russen QC
(Sitting as a Judge of the High Court)
Case No: LM-2017-000132
Sebastian Kokelaar (instructed by Richard Slade and Company Plc) for the Claimant
Stephen Robins (instructed by Birketts) for the Defendant
Hearing date: 4 February 2019
Approved Judgment
HH JUDGE Russen QC
HH Judge Russen QC:
By my Judgment dated 24 September 2018 (“the Judgment”) I gave judgment in favour of the Claimant, Mr Slade, against the Defendant, Mr Abbhi, pursuant to the oral agreement which, so I found, Mr Slade had established they had made in July 2011: see Slade v Abbhi [2018] EWHC 2039 (Comm).
The Judgment concluded by anticipating a further hearing at which the damages payable under the agreement, together with any interest payable by Mr Abbhi, would be assessed. Although its final paragraph (paragraph 121) envisaged that the further hearing over quantum would concern an assessment of “damages”, the prayer for relief in Mr Slade's Particulars of Claim (claiming a liquidated sum in the first instance and damages in the alternative) caused me also to contemplate, at paragraph 116, that the value of Mr Abbhi's broken contractual promise might be expressed as “debt or damages”.
The Judgment explained the basis of Mr Abbhi's liability (though he contends there is a real prospect of establishing on an appeal that it is a flawed one) and the circumstances in which a further hearing to address quantum and interest would be required.
The quantum hearing took place on 4 February 2019. The parties' oral submissions, preceded by written submissions, with both making extensive reference to authority, occupied an extended court day and left no time for an ex tempore judgment. At the conclusion of the hearing, I indicated that I would provide a written decision with the reasons in support of it expressed as concisely as the range of argument between the parties might permit. Subsequent reflection upon their arguments has resulted in a significantly longer written judgment than I had envisaged.
Despite the intended purpose of the quantum hearing and the relative length of this judgment, this latest determination by me does not amount to a definitive ruling on the quantum of Mr Slade's claim. That is primarily because of a point taken by Mr Abbhi upon the suggested effect of the Solicitors Act 1974 (in the light of the way in which I expressed myself in the Judgment). Argument over that point and its interplay with the finding to the effect that he is “primarily liable” to Mr Slade – one which Mr Abbhi wishes to challenge on an intended appeal against the Judgment (or, rather, any Order that comes to reflect it) — occupied most of the court day. There was no time left for anything like an assessment conducted by reference to the bills upon which Mr Slade relies, though Mr Robins for Mr Abbhi did flag the existence of points which, he submitted, meant his client could not be liable for certain costs even if the Judgment stands unchallenged. The absence of such a definitive outcome on the quantum hearing might also be said to be in part attributable to the fact, as I noted during the hearing, that there had been no directions in anticipation of it. I had not, for example, directed that the hearing take place by reference to a schedule and counter-schedule of loss, or any equivalent certification and impeachment of Mr Slade's losses.
But, first and foremost, and as Mr Abbhi cannot sensibly contest in the light of the stance he adopted at the latest hearing, the inevitability of a yet further step in the proceedings before me or, possibly, a Costs Judge — and for the present I ignore the prospect of a successful appeal and any stay pending such appeal — arises out of Mr Abbhi's argument on the Solicitors Act 1974 (“the 1974 Act”). That point is reinforced when I bear in mind that, on 6 December 2018, Mr Slade sent to Mr Abbhi's solicitors copies of the invoices (upon which Mr Slade relies in quantifying his claim) which Mr Abbhi first received during the course of “the Action” (as described in the Judgment). Although there was no outstanding direction requiring him to do so, Mr Abbhi did not avail himself of the opportunity to take issue with particular aspects of the fee notes.
Instead, his submission is that the true quantum of Mr Slade's claim is “nil”.
I return below to both the availability and the merits of that argument, and the reason why Mr Abbhi puts his case on “quantum” like that, as well as to the further topics of a common law assessment of Mr Slade's claim (as it might be described, independently of any jurisdiction under the 1974 Act) and Mr Abbhi's application for permission to appeal against my anticipated Order reflecting the Judgment.
However, to guard against the risk of being blinded by the obvious, I think it important first to note the circumstances in which Mr Slade, the successful party under the Judgment, finds himself in the position of facing an argument that, in truth, this Claim, commenced in August 2017 and brought to trial in July 2018, is of no value to him at all. Indeed, that his success would be illusory, if Mr Abbhi is correct, is made plain by the suggested consequence (as appears from draft Order proposed by Mr Robins on behalf of Mr Abbhi) that he, Mr Slade, should pay Mr Abbhi's costs of the Claim. An obvious question arises, therefore, as to how it is that Mr Slade's success under the Judgment is, in effect, now sought to be unwound by Mr Abbhi. What are the circumstances in which Mr Slade's claim, which is all about the recovery of money, and nothing at all to do with his ability now to deliver solicitors bills to Mr Abbhi, four years after the death of his client Mr Singh, is at this stage met with the argument that the liability which was established under the Judgment is in fact nothing of the sort?
The answer begins to appear from consideration of paragraphs 4 to 9, 40 and 67 to 70 of the Judgment. In August 2017, Mr Slade sued Mr Abbhi on an oral agreement reached in July 2011. For the reasons given in the Judgment, I found that agreement had been reached and that it was not a guarantee which fell foul of the Statute of Frauds. Mr Abbhi repudiated his liability under the agreement in April 2014, once the Action had failed. In these proceedings, he continued to deny the existence of any agreement with Mr Slade, to meet the legal costs of the Action, at least until the glitch in his version of events which emerged in his testimony in July 2018. Although Mr Abbhi's Defence had, by way of a fall-back argument, taken the point that any agreement which Mr Slade might establish (against Mr Abbhi's own case on the facts) was in the nature of a guarantee of Mr Singh's liability as client, he had not thought to take the point under the Solicitors Act upon which he now relies. In short, he did not think to have an alternative fall-back defence to cover the scenario – which has emerged – of him being liable to Mr Slade otherwise than as a guarantor. Nor, for that matter, did he think to take a point about the potential implications of section 71 of the 1974 Act on the basis that he was found to be a guarantor.
Mr Abbhi's Defence did, as Mr Robins points out, take the point at paragraph 47 that none of Mr Slade's bills in respect of the Action had been addressed to or rendered to Mr Abbhi. Given the lines of defence adopted by Mr Abbhi – that there had been no agreement to pay and, even if any such agreement was reached, it took the form of an unenforceable guarantee – I read that part of the pleading as being relied upon to bolster the first line of defence. Mr Robins accepted that the plea did not focus on the concept of “delivery” of the bills which is at the heart of the statutory provisions now relied upon. But, if I am wrong in my assumption, and a 1974 Act point was lurking within paragraph 47, then the full suggested legal consequences of the point ought to have been expressed in the Defence.
Mr Robins urged me not to go too far with the point that the 1974 Act has not been pleaded by Mr Abbhi. He says that it is an elementary proposition that there is no obligation to plead the legal consequences of facts established in the proceedings (at least so far as the need to plead English law is concerned) and there was no issue between the parties that the bills had not been addressed to or rendered to his client. At the level of principle, that submission cannot stand unqualified. Obviously, it would not have been necessary or appropriate for Mr Abbhi's Defence to have contained references to the authorities cited by Mr Robins at the hearing. But CPR 16.5(2) requires a defendant to state his reasons for denying an allegation made against him and as often as not they will be legal reasons. The point that such legal reasons might sometimes rest upon a statutory provision is illustrated by paragraph 49 of Mr Abbhi's Defence which did plead the Statute of Frauds to cover the eventuality of him being found to have stood as Mr Singh's guarantor.
Both section 69(1) of the 1974 Act and section 4 of the Statute of Frauds are to the effect that “no action shall be brought” without certain formalities having been satisfied; though the “before” (or, one might say, “until”) language of the first-compared with the “unless” language of latter — means that it protects against proceedings being brought precipitately, rather than brought at all. Just like a limitation defence, identifying the relevant statutory provision relied upon by the defendant, the court would expect to see any reliance upon the 1974 Act...
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