Hare -Brown & Anor v Trent & Anor, Court of Appeal - Supreme Court Cost Office, March 30, 2011, [2011] EWHC 90202 (Costs)

Issuing Organization:Supreme Court Cost Office
Actores:Hare -Brown & Anor v Trent & Anor
Resolution Date:March 30, 2011
 
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Case No. 10.P8.3883

Neutral Citation Number: [2011] EWHC 90202 (Costs)

IN THE HIGH COURT OF JUSTICE

SENIOR COURTS COSTS OFFICE

Clifford's Inn, Fetter Lane

London, EC4A 1DQ

Date: 30 March 2011

Before :

MASTER CAMPBELL, COSTS JUDGE

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Between :

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The Claimants appeared in Person

Ms Alison Trent (Solicitor) (instructed by Alison Trent & Co) for the Defendants

Hearing date: 13 January 2011

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Judgment

Master Campbell:

1. This judgment concerns S.71 of the Solicitors Act 1974 (``the Act'') in so far as it involves a landlord, Alison Trent (to be referred to as ``the Landlord'' or ``the party chargeable''), her solicitor, Alison Trent & Co (``the Solicitors'') and the Landlord's tenant, QCC Information Security Limited (``QCC''), in proceedings commenced by the QCC in a Claim Form under Part 8 of the Civil Procedure Rules (``CPR'') on 14 October 2010.

2. The details of QCC's claims are as follows:

``QCC Information Security Ltd dispute the amounts of all three of the invoices received from Alison Trent & Co relating to these matters on the basis that they are too high or have been unfairly charged. After analysis of each invoice we refute the validity of charges where we are being charged for work carried out in Alison Trent's capacity as our landlord, no charge for works in this capacity having ever been declared by her or agreed by us.

We also find times allocated to tasks undertaken in Alison Trent's capacity of conveyancing solicitor to be excessive for the work involved.

We hope that the bill assessment office will understand our position and find in our favour that the invoice amount should be greatly reduced.''

3. The reference to ``the invoices'' is to three documents sent by the Solicitors to QCC requesting payment in the sums of, respectively, £1,352.90, £5,335.80 and £9,845.10. The document claiming the largest sum is undated and is simply headed ``QCC sub-let/ abortive assignment''. The others both bear the date 9 December 2007 and are addressed to QCC at 149 Fleet Street London EC4.

4. According to the Claim Form, these documents, (which I shall call ``the Invoices''), relate to the following three matters:

(1) Our [QCC's] takeover of another floor within the building requiring surrender of the sitting tenant's lease and a new lease being issued to us.

(2) Rectification of our existing leases where we had effected a company name change.

(3) Sub-letting (with the landlord's permission) of some of our space Gillham's Solicitors).

5. The parties named in the Claim Form are, under ``Claimant'', Neil Hare-Brown and QCC Information Security Ltd; under ``Defendant'', Alison Trent and Alison Trent & Co. It was explained to me that Mr Hare-Brown is a Director of QCC and he was included on the Claim Form simply because it was believed that the name of the person representing his Company needed to be stated; for that reason, QCC has applied for Mr Hare-Brown to be removed from as a party. Alison Trent is the landlord of premises at 149 Fleet Street, London EC4 and Alison Trent & Co are solicitors that she instructed, albeit that Ms Trent is also the principal of that firm. On 1 November 2010, the Solicitors acknowledged service of the Claim Form on behalf of the Landlord opposing the relief claimed in the Claim Form. The acknowledgment does not state in terms that it was also lodged on behalf of the Solicitors, but no point is taken on that.

6. On 13 January 2011, I heard argument about whether the Invoices should be assessed by detailed assessment. Ms. Alison Trent appeared as a solicitor on behalf of herself as landlord and in her capacity as a solicitor for her own firm. Mr. Hare-Brown represented QCC as a Director of the Company. The documents before the Court included a witness statement made by Ms Trent on 1 November 2011 as Principal of the Solicitors, a skeleton argument she had prepared and a bundle lodged by QCC entitled ``Response to Counter-Claim by Alison Trent''. As I did not have an opportunity to read this ``Response'' in advance of the hearing, I reserved judgment.

BACKGROUND

7. It is common ground that during the time with which this matter is concerned, QCC was the tenant of Alison Trent in respect of part of the second floor, the third floor and fifth floor of offices at 149 Fleet Street London EC4. These premises were demised under the terms of three separate leases from Alison Trent to QCC, which, in order of time, related respectively, to the three floors I have described (see her witness statement paragraph 6). On 8 April 2009, it came to the Landlord's notice that QCC had ``swapped'' names with another company that had been set up called ``QCC Technologies Limited''. This had potentially adverse consequences for Alison Trent as landlord. First, as income had been directed by QCC to the new company, there was a risk that QCC would be unable to pay the rent. Second, the presence of the ``new'' company was likely to cause problems as it was a requirement of Alison Trent's lender that the demised premises be contracted out of the Landlord and Tenant Act Part II (1954). Third, another company, QCC Interscan, had been permitted by QCC to use the premises in breach of covenant. Finally, there was a security issue about electronic security fobs that had been issued to named personnel of QCC which had then been distributed to other individuals who had no right to enter the demised premises.

8. In Alison Trent's view (witness statement 11), these were all matters that breached the terms of the leases and between 8 April 2009 when she had found out about them, and 14 July 2009 when they were made good, she had been put to significant work and expense in her capacity both as landlord and solicitor in order to remedy the breaches. This had been achieved by granting licences to assign and/or variations of the leases. Following completion, Ms Trent looked, as she was entitled to do, to QCC for the costs due to her in her capacity as landlord (see skeleton 4 (c)), QCC's liability having arisen under clause 17 of the leases which `` required the tenant to pay the landlord's costs, inter alia, in relation to any breaches or applications'' (witness statement 14).

THE RELIEF SOUGHT

9. The claim form does not mention the Solicitors Act 1974, but in my view it is plain that the relief QCC is seeking is an order for detailed assessment of the Invoices under Section 70 or Section 71 of the Act (see paragraph 11 post). The fact that the Claim Form is silent on this point does not prevent this Court from making an order for assessment (see Szekeres v Alan Smeath & Co [2005] 4 Costs LR 707) (Pumfrey J). I reach this conclusion because the factors which persuaded Pumfrey J at paragraph 7 to make such an order in that case are present here:

i) There is a list of the bills.

ii) There is a clear statement that the bills are disputed.

iii) The parties are properly identified.

iv) There is a duly signed statement of truth (by Mr Hare-Brown).

10. It follows that there is no reason, in my judgment, why an order for assessment should not be made under the Act.

THE SOLICITORS ACT 1974 (AS AMENDED BY THE COURTS AND LEGAL SERVICES ACT (2007)

11. This provides where relevant as follows:

``Assessment on Application of Party Chargeable

70. - (1) Where before the expiration of one month from the delivery of a solicitor's bill an application is made by the party chargeable with the bill, the High Court shall, without requiring any sum to be paid into court, order that the bill be assessed and that no action be commenced on the bill until the assessment is completed ...

(2) Where no such application is made before the expiration of the period mentioned in sub-section (1) then, on an application being made by the solicitor or, subject to sub-sections (3) and (4) by the party chargeable with the bill, the court may on such terms, if any, as it thinks fit ... order -

(a) that the bill be assessed ...

(3) Where an application under sub-section (2) is made by the party chargeable with the bill -

(c) after the bill has been paid, but before the expiration of 12 months from payment of the bill, no order shall be made except in special circumstances and, if an order is made, it may contain such terms as regards the costs of the assessment as the court may think fit. ...

(7) Every order for the assessment of a bill shall require the Costs Officer to assess not only the bill but also the costs of the assessment and to certify what is due to or by the solicitor in respect of the bill and in respect of the costs of the assessment.

Assessment on Application of Third Party

71.- (1) Where a person other than the person chargeable with the bill for the purposes of Section 70 has paid, or is or is liable to pay, the bill either to the solicitor or to the party chargeable with the bill, that person ... may apply to the High Court for an order for the assessment of the bill as if he were the party chargeable with it, and the court may make the same order (if any) as it might have made if the application had been made by the party chargeable with the bill.

(2) Where the court has no power to make an order by virtue of sub-section (1) except in special circumstances it may, in considering whether there are special circumstances sufficient to justify the making of an order, take into account circumstances which may affect the applicant but do not affect the party chargeable with the bill.''

12. When the Court carries out an assessment under either of these sections of the Act, the indemnity basis applies under the Civil Procedure Rules (``CPR''). These provide as follows:-

``Basis of assessment

44.4

(1) Where the court is to assess the amount of costs (whether by summary or detailed assessment) it will assess those costs -

(a) on the standard basis; or

(b) on the indemnity basis,

but the court will not in either case allow...

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