Stephen Robert Jones v TWINSECTRA Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,MR JUSTICE MOSES,LORD JUSTICE BUXTON |
| Judgment Date | 16 April 2002 |
| Neutral Citation | [2002] EWCA Civ 668 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 April 2002 |
[2002] EWCA Civ 668
IN THE SUPREME COURT OF JUDICATURE B1/2001/1463/A
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM STAINES COUNTY COURT
(HIS HONOUR JUDGE MICHAEL COOK)
Royal Courts of Justice
Strand
London WC2
Lord Justice Thorpe
Lord Justice Buxton and
Mr Justice Moses
MR M YOUNG (instructed by J E Kennedy & Co, Middlesex HA1 3HT) appeared on behalf of the Appellant
MR N BACON (instructed by Beachcroft Wansbroughs, Manchester M2 7LP) appeared on behalf of the Respondent
Tuesday, 16th April 2002
My Lord will give the first judgment.
: Despite the fact that this appeal is entituled as being between Mr Stephen Robert Jones (who sues as a representative claimant) and two defendants, Twinsectra Limited and Barclays Bank Plc, the latter two persons play no part in this appeal.
The original claim was made by Mr Jones and others on behalf of some 26 residents of buildings at Tudor Court, Elton, Middlesex, to obtain the freehold of their premises under either Part I of the Landlord and Tenant Act 1987 or the Leasehold Reform Act 1967. After what appeared, from the little we know of it, to have been some fairly complex litigation, those proceedings were eventually successful, with the result that the claimant as trustee became entitled to call for the transfer of the freehold in the properties. The solicitor who acted throughout for the claimants was a Mr Kennedy, and he sought to recover his fees from the persons who had benefited in the action and to whom I will hereafter refer as "the clients".
This appeal from a decision of His Honour Judge Michael Cooke in the Staines County Court is in regard to Mr Kennedy's costs. The appeal does not concern either the amount of those costs or the process of their taxation, but merely whether that taxation should take place in the Staines County Court or in the Supreme Court Taxing Office. That is an issue that has been strongly contested between Mr Kennedy on the one part, and his clients on the other.
Mr Kennedy commenced his process of recovery by an application in the Staines County Court for a charging order upon the properties that had been recovered as a result of his efforts. That application was made under section 73 of the Solicitors Act 1974 which, because it plays a large part in this appeal, I shall set out:
"(1) Subject to subsection (2) [which does not arise in this case], any court in which a solicitor has been employed to prosecute or defend any suit, matter or proceedings may at any time —
(a) declare the solicitor entitled to a charge on any property recovered or preserved through his instrumentality for his taxed costs in relation to that suit, matter or proceeding; and
(b) make such orders for the taxation of those costs and for raising money to pay or for paying them out of the property recovered or preserved as the court thinks fit…"
There is a further provision, again not arising here, as to conveyances made to defeat such charge being void.
That application was backed by a witness statement from Mr Kennedy. On 4th May 2000 an order was made on an application without notice to District Judge Dimmick. The order reads as follows:
"It is declared that J E Kennedy & Co as the solicitors acting for the claimant in this suit are entitled to a charge upon the claimants' freehold interest in the premise 1–4B inclusive Tudor Court, 8–12 inclusive Tudor Court and 1–7 inclusive Tudor House Hanworth Park Feltham Middlesex for their taxed costs, charges and expenses properly incurred.
It is ordered that the said solicitors costs be assessed by this Court and matter be listed for 11am on Tuesday 27th June 2000, when directions shall be given in the matter and in respect of the assessment."
The claim for costs that Mr Kennedy made was for the balance unpaid on his then bills. As will have been seen, the order sought by Mr Kennedy and made by the district judge was that those costs should be assessed in the Staines County Court. Thereafter, however, a question arose as to where in fact costs should be taxed.
On 26th September 2000 those by that time representing the clients proposed that the taxation should take place in what they describe as the Royal Courts of Justice, meaning thereby the Central Taxing Office. The clients' solicitors furnished draft directions in anticipation of a hearing on 28th September, in which various directions were suggested as to the delivering of cash accounts and other books and papers to their draftsman, and provided that the matter should be remitted thereupon to the Central Office for detailed assessment by a costs officer acting in that jurisdiction.
Mr Kennedy objected to that proposal in a letter that he sent the next day to the clients' solicitors. First, in his view the district judge in the county court was perfectly well able to deal with the assessment of the bills; second, there would be delay caused by the remission of the matter to the Central Office. The clients' solicitor replied on that very same day in a lengthy letter dealing mainly with disputes that unfortunately seem to have existed about what documents should be produced and what should not, but then dealt with the question of "transfer to Royal Courts of Justice". He explained that although the matter had not been dealt with previously between the parties it had been considered amongst the clients themselves. He said this:
"Clearly, the costs in issue in this matter amount to over £70,000. It is clear from even my limited involvement that the matter not only relates to a significant sum of money but is also of a particular complexity."
He went on to say that he regretted that he could not take the same view of the respective experience of the district judges and of the taxing masters in the High Court, and ended as follows:
"I have excluded reference to the RCJ from the Directions at this stage, although I reserve the right to make an application (hopefully with your consent) at a later stage."
The draft directions went forward to the district judge with a view to a consent order being made, omitting that part of them that had sought to alter the earlier order of District Judge Dimmick and to transfer the matter to the High Court. A consent order was signed by both solicitors on 28th September 2000 which said nothing about assessment in the central office, and so the assessment stayed in the county court. On 1st November 2000 District Judge Freeman made an order in those terms and also an order requiring certain steps to be taken by consent between the parties, including the filing of various documents and the exchange of points of dispute. That order said that either party might apply for a detailed assessment appointment provided the application was made by 4th January 2001. No such application was made and therefore the parties were informed that the detailed assessment would take place on 26th March 2001 in the Staines County Court. Still there was no application to return to the Central Office.
However, on 21st February 2001 the clients did apply for the detailed assessment to be transferred to the Central Office at the Royal Courts of Justice. In that application they pointed out, as they already had done so in correspondence, the total amount sought was £70,000, and that each of the three bills in respect of which the order had been made for detailed assessment exceeded £5,000 in claimed value. They alleged that the matter was too complex by reason of the taxation problems and the background of the case to warrant a taxation in the county court, and that in any event the county court did not have jurisdiction to entertain the taxation.
That complaint as to jurisdiction is the central issue in this appeal. It arises from the terms of section 69(3) of the Solicitors Act 1974. That section is headed "Action to recover solicitor's costs". Subsection (1) limits the bringing of such an action to a period after one month has expired from the date upon which the bill of cost has been delivered, and says that a necessary precursor to such an action is the delivery of a signed bill as required in section 69(2). Details are given for the delivery of that bill. Then section 69(3), upon which the clients relied and rely, reads as follows:
"Where a bill of costs relates wholly or partly to contentious business done in a county court and the amount of the bill does not exceed £5,000, the powers and duties of the High Court under this section and sections 70 and 71 in relation to that bill may be exercised and performed by any county court in which any part of the business was done."
Sections 70 and 71 in some part laid down detailed provisions as to the procedure for taxation on the application of either the party chargeable or the solicitor or, where applicable, third parties.
That application was heard by Deputy District Judge Beith on 8th March 2000 and he dismissed it. On the question of jurisdiction he accepted the submissions of counsel for Mr Kennedy that the jurisdiction to tax the bill in the county court was available—I emphasise these are not the words the deputy district judge used—under a freestanding power as set out in section 73, and was not affected by the jurisdictional limit in section 69(3). He also found that in his view the case was not one of complexity. The Deputy District Judge drew attention to the fact that in September 2000, when discussion took place as to the possibility of removal into the High Court, the claimants' solicitor, albeit expressing some reservations, had in fact...
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