Slade (t/a Richard Slade And Co) v Abbhi, Court of Appeal - Commercial Court, September 24, 2018, [2018] EWHC 2039 (Comm)

Resolution Date:September 24, 2018
Issuing Organization:Commercial Court
Actores:Slade (t/a Richard Slade And Co) v Abbhi
 
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Neutral Citation Number: [2018] EWHC 2039 (Comm)

Claim No: LM-2017-000132

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES

LONDON CIRCUIT COMMERCIAL COURT

Royal Courts of Justice

Rolls Building

Fetter Lane

London EC4A 1NL

Date: 24/09/2018

Before :

HH JUDGE RUSSEN QC

(Sitting as a Judge of the High Court)

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Between :

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Sebastian Kokelaar (instructed by Richard Slade and Company PLC) for the Claimant

Stephen Robins (instructed by Birketts) for the Defendant

Hearing dates: 24, 25 and 27 July 2018

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HH JUDGE RUSSEN QC:

Introduction

  1. The Claimant in these proceedings (``Mr Slade'') is a solicitor who at all times material to his claim, including its commencement, was the sole principal in his firm of Richard Slade and Company. The firm's practice (or business) has since been incorporated.

  2. The Defendant to Mr Slade's claim (``Mr Abbhi'') is the son-in-law of Mr Slade's former client, Mr Balmohinder Singh (``Mr Singh'') and he is married to Mr Singh's daughter Suninder (known as ``Seema'').

  3. Mr Slade claims that Mr Abbhi is liable to him in respect of legal fees and disbursements (including counsel's fees) which Mr Slade's firm incurred on Mr Singh's account in 2013 to 2015, in acting for him in litigation, and which remain unpaid. Mr Singh died on 9 February 2015 (he had been quite unwell throughout the period Mr Slade acted for him) and his estate is insolvent, an insolvency referable in no small part to the cost liability he incurred to his son and adversary (``Jasminder'') in the litigation in which Mr Slade came to represent him. In the present proceedings that litigation is described in the statements of case mentioned below, and I will also refer to it, as ``the Action''.

  4. By a Claim Form issued on 17 August 2017 Mr Slade seeks to recover from Mr Abbhi the sum of £371,159.59 representing fees of £333,260.63 incurred by Mr Slade in acting for Mr Singh in the Action, plus interest (at 8% p.a.) down to the date of issue of the present Claim. Most of the invoices in support of that claim were rendered before Mr Singh's death, though the last five (totalling just under £16,000) were submitted either shortly before or within a couple of months after 9 February 2015.

  5. The Claim Form states that Mr Abbhi's liability in respect of Mr Singh's legal fees arises ``pursuant to an agreement dated on or around 7 November 2013''. However, the Particulars of Claim (also dated 17 August 2017) allege in paragraph 7 as follows:

    ``On or around 11 July 2013 the Defendant:

    (a) Informed the Claimant that Mr Singh himself would be unable to pay the Claimant's fees and disbursements to be incurred in connection with the Action'';

    (b) Agreed with the Claimant, in consideration of the Claimant agreeing to act for Mr Singh in the Action, that he would pay such fees and disbursements on Mr Singh's behalf, alternatively, lend Mr Singh sufficient funds to pay such fees and disbursements and ensure that those funds would be applied for that purpose, pursuant to the 2012 Loan Agreement (a copy of which was provided by the Defendant to the Claimant by email on 16 July 2013)''

  6. That oral agreement of 11 July 2013 is said by Mr Slade to have been reached at a meeting at The Capital Hotel in Knightsbridge between Mr Abbhi, Seema and Mr Slade. There is no dispute that the meeting took place. It was the first time Mr Slade met Mr Abbhi and Seema. It had been arranged by leading counsel, Mr John McDonnell QC who had been instructed on behalf of Mr Singh in the Action for some time, in circumstances where the principal solicitor within Mr Singh's former solicitors, Pillai & Jones, had been taken ill and replacement solicitors needed to be found to carry on the conduct of the litigation which was coming to trial later in the year.

  7. As Mr Kokelaar for Mr Slade and Mr Robins for Mr Abbhi recognised in their Skeleton Arguments and opening and closing submissions, the case turns upon my findings of fact in relation to that meeting and the legal analysis of any binding agreement I may find to have been reached during it. The legal burden of proof of course rests upon Mr Slade.

  8. Mr Robins was at pains to point out, correctly and with confirmation from Mr Kokelaar, that the claim that Mr Abbhi is liable for the legal fees rests solely upon an oral agreement reached at the hotel on 11 July 2013, and not any later email exchanges in October and November 2013. I return to the point below but note at the outset Mr Robins' submission that the confusion over the date of the alleged agreement, as between the Claim Form and the Particulars of Claim, was not a promising start for Mr Slade in establishing his case. Mr Robins bolstered that submission by saying that contemporaneous emails from Mr Slade after November 2013 (both to Mr Abbhi and to the legal team of leading and junior counsel and their clerk) clearly indicated that Mr Slade thought that any agreement dated from October/November 2013, rather than the earlier meeting in July of that year; and yet it was obvious, he submitted without contradiction from Mr Kokelaar, that the correspondence between Mr Slade and Mr Abbhi in those two months failed to establish any meeting of minds between them over the payment of fees.

  9. Mr Abbhi's pleaded case is that he reached no agreement with Mr Slade at the July meeting. In addition to denying paragraph 7 of the Particulars of Claim, his Defence denies that he agreed with the Claimant that he would either discharge Mr Singh's fees or lend Mr Singh sufficient funds to discharge in full his liability to pay the Claimant's fees. The only relevant agreement in relation to funding of Mr Singh's litigation was, Mr Abbhi says, a Loan Agreement dated 16 June 2012 between himself as lender and Mr Singh as borrower which expressly made it clear that any further lending beyond previous loans totalling US $530,000, and lent to fund the Action before Mr Slade's firm was instructed, was lending entirely within his discretion. That Loan Agreement was entered into before Mr Slade was retained by Mr Singh. The ``Initial Loan'' of $530,000 mentioned in it had been advanced by Mr Abbhi to two firms of solicitors (including Pillai & Jones) who had successively acted for Mr Singh before Mr Slade came to act. Although the Loan Agreement specified that any further loans under it would be used for the purpose of paying Mr Singh's legal fees and expenses in relation to the litigation with Jasminder, the Defence denies any separate agreement was made between Mr Slade and Mr Abbhi that they would be used solely for that purpose. Paragraph 37 of the Defence denies any agreement between them that Mr Abbhi would discharge Mr Singh's legal fees or any other agreement to lend monies for that purpose.

  10. I note that, although paragraph 37(5) denies any agreement to lend so as to discharge Mr Singh's liability ``in full'', there is no recognition of any agreement to lend to a lesser extent. A fair reading of paragraph 37 as a whole (in particular paragraph 37(6)) is that it involves a rejection of any separate agreement having been made between Mr Slade and Mr Abbhi at the hotel meeting. Paragraphs 41 to 43 of Mr Abbhi's witness statement (which I quote in paragraph 45 below) confirm that interpretation.

  11. As a fall-back defence, Mr Abbhi says that the proper analysis of the agreement alleged against him by Mr Slade is that it was in the nature of a guarantee which is unenforceable for want of any document bearing a signature sufficient to satisfy the requirements of section 4 of the Statute of Frauds 1677.

  12. As I put it to counsel during the course of their brief openings, the issues for trial were, therefore, whether there was any privity of contract between the parties and, if so, what kind of contract had they made given the point taken upon the Statute of Frauds. As I also observed, Mr Slade's pleaded case amounted to saying that Mr Abbhi had assumed primary liability under an oral funding agreement (albeit that the funding might be channelled through Mr Singh under the separate Loan Agreement between Mr Singh and Mr Abbhi). Mr Robins remarked, however, that the claim against Mr Abbhi for interest on the outstanding sums at 8% (which was the rate specified in the firm's standard terms of business unless LIBOR plus 5% was higher) could only be consistent with the liability being one of guarantee. That rate of interest was also the same one as specified in the Loan Agreement of June 2012 but there was no question of Mr Slade having any rights under that contract.

  13. Mr Kokelaar had the day before trial submitted a Supplemental Note, supported by authorities, in relation to the requirements of the Statute of Frauds but counsel proposed the sensible course of deferring any further submissions on that aspect until evidence had been given by Mr Slade and Mr Abbhi in relation to the agreement allegedly struck. The authorities on the point were supplemented by others on the morning of the third day of trial when closing submissions were made.

  14. The testimony of Mr Slade and then Mr Abbhi together occupied two days of the trial. Counsel made submissions by reference to the transcripts of evidence during the morning of the third day.

  15. It is appropriate at this stage to record my gratitude to Mr Kokelaar and Mr Robins for the clear and efficient way in which they have each presented their client's case both in the course of cross-examination and in their submissions.

    Background

  16. As the issues that I have to decide fall within narrow confines, there is no need for me to dwell too long upon the nature of the litigation between Mr Singh and his son Jasminder, in which Mr Singh was unsuccessful and which led to him incurring liability for Jasminder's costs which were said to be...

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