Sylvia Olukoya v Riverbrooke Solicitors Ltd
| Jurisdiction | England & Wales |
| Judge | Leonard |
| Judgment Date | 02 November 2023 |
| Neutral Citation | [2023] EWHC 2771 (SCCO) |
| Court | Senior Courts |
| Docket Number | Case No: SC-2023-APP-000067 |
[2023] EWHC 2771 (SCCO)
COSTS JUDGE Leonard
Case No: SC-2023-APP-000067
IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE
Thomas More Building
Royal Courts of Justice
London WC2A 2LL
Jimmy Barber (instructed by Chan Neill Solicitors) for the Claimant
Karl King (instructed by the Defendant) for the Defendant)
Hearing date: 20 July 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
On 26 January 2023, the Claimant filed an application under section 70 of the Solicitors Act 1974 for the assessment of a bill delivered by the Defendant solicitors to the Claimant on 28 December 2022. The Claimant applied for alternative remedies, but they are not material for present purposes.
On 8 March 2023 this court made an order for the assessment of that bill, referred to in the order (for reasons that I will explain) as “the Revised Bill”, and provided for four issues to be tried as preliminary issues on the assessment. They were:
1) Whether the Defendant is bound by contract by the “agreed outcome” of a Legal Ombudsman procedure dated 20th February 2020, so that nothing can be due to the Defendant from the Claimant under the Revised Bill;
2) Whether the Defendant is prevented from raising the Revised Bill by the Legal Ombudsman's Scheme Rules or other statutory provision, so that nothing can be due to the Defendant from the Claimant under the Revised Bill;
3) Whether the Defendant is estopped from raising the Revised Bill, so that nothing can be due to the Defendant from the Claimant under the Revised Bill, and
4) Whether the Defendant requires the court's permission to raise the Revised Bill and, if so, whether permission should be given.
The jurisdiction of the Legal Ombudsman Scheme is derived from the Legal Services Act 2007. The Legal Ombudsman is empowered to investigate complaints against solicitors and to provide remedies to clients for inadequate service. Remedies include the limitation of fees, compensation for financial loss or for distress and inconvenience, and the requirement of an apology.
The term “agreed outcome” has been used in the Claimant's Part 8 Claim Form, in correspondence and in evidence. It is not in itself indicative of a binding agreement. It is another way of describing what is referred to in the Legal Ombudsman's Scheme Rules as an “Informal Resolution”, arranged between the parties through the Legal Ombudsman in February 2018 and described in more detail below. In this judgment I shall use the term “Informal Resolution”.
The Witness Evidence
On 8 March 2023, having identified the preliminary issues to which I have referred, this court gave directions for the service of witness evidence on those issues. The timetable set for the service of that evidence was extended by agreement, and the Defendant also applied for permission to rely upon the late witness evidence of Mrs Undiga Emuekpere.
The application was opposed, and was listed for hearing on the date set for the hearing of the preliminary issues. On the day, the statement was admitted by agreement: as I observed at the time, it is almost entirely irrelevant to the preliminary issues and there was really no point in taking up court time debating whether to admit it. The parties also agreed that the preliminary issues could be determined by reference to their submissions and witness statements, without the necessity for cross-examination.
Those witness statements comprise a statement on behalf of the Defendant from Mrs Chi Chikwendu (the partner in the Defendant firm who had ultimate responsibility for the Claimant's case) dated 19 April 2023; the witness statement of Mrs Emuekpere, dated 28 June 2023; a witness statement from the Claimant dated 16 May 2023; and a witness statement of Ms Kehinde Akintunde, a union representative who had assisted the Claimant before the Employment Tribunal, dated 16 May 2023.
I turn to the events that led to the making of the Claimant's application for assessment.
The Parties' Dealings
In 2017 the Claimant brought an Employment Tribunal claim against her former employer, the London Borough of Tower Hamlets. Initially the Claimant represented herself with the assistance of a direct access barrister, Ms Nabila Mallick. In April 2017, at a Case Management hearing, the Tribunal Judge indicated that the substantive hearing would take 10 days and Ms Mallick advised the Claimant that it would be wise to find a solicitor who could assist her in preparing for the hearing.
In consequence the Claimant, having (it would appear) first consulted the Defendant on 29 April 2017, instructed the Defendant. The Defendant's written letter of retainer is dated 23 May 2017. The Defendant, in that letter, offered an initial fee estimate of between £6,000 and £10,000, depending upon whether the case went to a final contested hearing; undertook every two months to send to the Claimant an estimate of costs incurred; and undertook to advise her should it appear that the Defendant's initial estimate would be exceeded.
The first substantive hearing before the Tribunal started on 15 August 2017 and lasted (on different accounts) either seven days or eight days including one half day. The Tribunal found in the Claimant's favour and listed a two-day remedy hearing on 7 and 8 June 2018.
On 30 July 2018, the Claimant wrote a letter of complaint to the Defendant. I need not set out her complaints in detail, but among them was that she had not been advised until the first day of the Remedy Hearing on 7 June 2018 that the Defendant's total claimed costs were in the region of £85,000. Nor did she accept that the Defendant had undertaken work to that value. The Defendant did respond to the Claimant's complaint, but no agreed resolution was achieved at that stage.
In a letter dated 7 August 2018, the Claimant terminated the Defendant's retainer.
On 22 January 2019 the Tribunal heard an application by the Claimant for an order that Tower Hamlets pay her costs. The Defendant, on the basis that it was an interested party, sent counsel (Mr Julius Nkafu) to the hearing. The costs application was refused, and an attempted appeal was unsuccessful.
The Claimant referred her complaints about the Defendant to the Legal Ombudsman. The precise date of the complaint is unclear, but it was notified to the Defendant by the Legal Ombudsman's office on 4 July 2019. There followed correspondence between the Legal Ombudsman's office, the Claimant and the Defendant, culminating in the Informal Resolution to which I have referred. It is necessary, for present purposes, to refer to the contents of some of that correspondence (for the sake of clarity I have corrected some minor spelling/typing errors).
On 12 December 2019 Ms Jane Bartlam, a Legal Ombudsman Investigator, wrote to Mrs Chikwendu:
“Thank you for speaking with me yesterday, as I explained my name is Jane Bartlam and I will be investigating the complaint from Ms Olukoya…”
Ms Bartlam went on to summarise the Claimant's complaint on inadequate costs information, exceeding estimate and excessive costs, and advised Mrs Chikwendu:
“Ms Olukoya is of the view that the firm should reduce their costs back to the original estimate and no more and that if they did this, she would agree to this offer as a remedy to the complaint.”
Ms Bartlam outlined the standard expected of solicitors in relation to costs information, indicated that the Defendant should have, but had not sent a final bill to the Claimant on the conclusion of the Claimant's application for costs against Tower Hamlets and advised that:
“…If the firm's costs have exceeded the original estimate and if we agree there was some poor service then we may ask the firm to reduce the costs.”
Under the heading “My Role” Ms Bartlam said:
“My role is to help you and Olukoya reach an agreement that you are both satisfied with. This can happen at any point during my investigation. If, based on the information outlined above, you wish to make an offer to resolve the complaint at this stage please contact me.
If I can't help you reach an agreement, I will prepare a case decision, which will outline my conclusions based on the facts, and say what I think it will take to resolve the complaint.
If I do write a case decision, it will be sent to you and Olukoya. You will both have the opportunity to respond. If either of you disagree with the case decision an ombudsman will consider your case and make a final decision.
A final decision cannot be appealed. If the final decision is accepted by Olukoya, it is binding on your firm and you must do what it says. Acceptance of the final decision also stops Olukoya from making any other claim in relation to the complaint. If they reject the final decision, you will not have to do anything and we will close our case. No further action will be taken.”
Ms Bartlam provided the Defendant with a list of documents she required to see, and asked some supplementary questions. The documents were to be supplied by 19 December 2019.
Ms Bartlam's letter was accompanied by an email:
“Attached you will find a letter that confirms the complaints being made against the firm by Ms Olukoya and a request for additional evidence so that I can review that and reach my conclusions on the case.
I received the client care letter and the bill of costs yesterday thank you. I do however disagree with your view that a bill of costs is also an invoice. The bill of costs was prepared for the court. It was not addressed to Ms Olukoya and whilst in a letter you asked her “comments in due course” about the bill you did...
To continue reading
Request your trial