McLoughlin & Ors v Mitchell, Court of Appeal - Supreme Court Cost Office, August 29, 2008, [2008] EWHC 90113 (Costs)

Resolution Date:August 29, 2008
Issuing Organization:Supreme Court Cost Office
Actores:McLoughlin & Ors v Mitchell
 
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Case No: 07.P8.1423

BAILII Citation Number: [2008] EWHC 90113 (Costs)

IN THE HIGH COURT OF JUSTICE

SUPREME COURT COSTS OFFICE

IN THE MATTER OF IRWIN MITCHELL AND IN THE MATTER OF THE SOLICITORS ACT 1974

Clifford's Inn, Fetter Lane

London, EC4A 1DQ

Date: 29/08/2008

Before :

MASTER SIMONS

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Between :

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Paul Jones, Costs Draftsman for the Claimants

Luke Wygas, Counsel for the Defendants

Hearing date: 8th August 2008

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Judgment

Master Simons :

  1. This is a Part 8 Claim in which the Claimants seek:-

    (1) An order for the Defendants to deliver up a final bill and cash account to the First Claimant; and/or

    (2) A certificate for special circumstances pursuant to section 70(1) of the Solicitors Act 1974; and/or

    (3) An order in standard form for detailed assessment of 20 bills rendered by the Defendants to the Claimants, the first of which was dated the 11th November 2004 and the final one dated the 14th September 2006.

  2. The Defendants oppose the claim on a number of grounds. Firstly, they state that all the bills are statute bills and, apart from the final three, have all been paid at least 12 months prior to the issue of the claim and that I am precluded from ordering a Detailed Assessment by s.70(4) Solicitors Act 1974. With regard to the three bills that have not been paid, the Defendants state that the last of these three bills was rendered more than 12 months prior to the issue of the claim and that the Claimants have shown no special circumstances why there should be a detailed assessment of those bills.

  3. This Part 8 Claim was issued on the 11th December 2007. On the 7th January 2008 I ordered the First Claimant to file and serve a witness statement dealing with the issue as to whether the bills were statute bills or non-statute bills and whether there were any special circumstances. I also ordered that the Second and Third Claimants file witness statements specifying their interest in the proceedings and dealing with special circumstances. Permission was given to the Defendants to file witness statements in response.

  4. Sybina McLoughlin, the receiver and litigation friend (and daughter) of the First Claimant, filed a witness statement dated 3rd February 2008 and Adam Draper, an associate solicitor with the Defendants, filed a witness statement dated 25th February 2008 having previously filed a witness statement dated 4th January 2008. No witness statements were filed by the Second and Third Claimants. On the 7th August 2008 Mr Draper filed a third witness statement which was handed to me immediately prior to the hearing.

  5. Mr Paul Jones, a Costs Draftsman instructed by the Claimants, and Mr Luke Wygas, Counsel instructed by the Defendants, both filed detailed and helpful Skeleton Arguments which I have read and I have listened to their oral submissions.

    The Parties

  6. All the bills were rendered to the First Claimant. On 6th December 2006 an application was made to the Court of Protection by his daughter, Sybina McLoughlin, that she be appointed receiver of the First Claimant's estate on the grounds that he was incapable of managing his own affairs and a First General Order was made by the Court of Protection dated 27th February 2007 acceding to the application.

  7. All the bills related to work carried out by the Defendants on the instructions of the First Claimant to act on his behalf in relation to a professional negligence claim against the First Claimant's previous solicitors. On the 17th July 2006 the First Claimant and the Second Claimant, who were the freehold owners of 9 Whitelow Road, Chorlton-cum-Hardy, Manchester, M21 9HQ, charged that property to the Defendants in respect of legal fees. As a result of the non-payment of legal fees, the Defendants have commenced proceedings to enforce their Legal Charge. The Second Claimant and the Third Claimant both claim to have a beneficial interest in the property and I am informed that is the reason why they are named as Claimants in these proceedings. I am told that these enforcement proceedings have been stayed pending the outcome of this Part 8 Claim.

    Claimants' Submissions

  8. The Claimants submit that all the bills are interim non-statute bills. In support of this submission, the Claimants rely upon the following:-

    (1) A client care letter sent by the Defendants to the First Claimant dated 15th October 2004 contains the following paragraph:-

    ``While our work is in progress...

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