Helvadjian v Ambrose Appelbe Solicitors, Court of Appeal - Supreme Court Cost Office, January 30, 2009, [2009] EWHC 90133 (Costs)

Issuing Organization:Supreme Court Cost Office
Actores:Helvadjian v Ambrose Appelbe Solicitors
Resolution Date:January 30, 2009
 
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Case No: PTH 0705363

IN THE HIGH COURT OF JUSTICE

SUPREME COURT COSTS OFFICE

Clifford's Inn, Fetter Lane

London, EC4A 1DQ

Date: 30 January 2009

Before :

CHIEF MASTER HURST, SENIOR COSTS JUDGE

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Between :

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The Claimant in Person

Mr Richard Morgan of Ambrose Appelbe for the Defendant

Hearing dates: 15 October 2008, 19 November 2008 and 14 January 2009

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Approved Judgment

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Senior Costs Judge:

1. INTRODUCTION

1. On 24 January 2007 Master O'Hare made an order in the following terms:

``1. A detailed assessment must be made of the profit costs claimed in the bill as set out in the schedule hereto delivered to the claimant by the defendants.

2. On making the detailed assessment the court must also assess the costs of these proceedings and certify what is due to or from either party in respect of the bill and the costs of these proceedings.

3. Until these proceedings are concluded the defendants must not commence or continue any proceedings against the claimant in respect of the bill mentioned above.

4. Upon payment by the claimant of any sums certified as due to the defendants in these proceedings, the defendants must deliver to the claimants all the documentation in the defendant's possession or control which belong to the claimant.''

2. The order went on to give directions for the service of a breakdown of each bill of costs. The schedule sets out the twelve bills of costs which are to be the subject of detailed assessment. The bills numbers are: 14143, 14178, 14199, 14277, 14298, 14332, 14379, 14408, 14444, 14526, 14744, 15113.

3. This detailed assessment came before me, having previously been heard before Master O'Hare. The Defendant firm appealed that decision, and the matter came before Mr Justice Evans-Lombe on 13 May 2008. The Judge set aside the Master's order, but imposed a cap on the amount recoverable by the Solicitors. The order made by the Judge on appeal reads:

``IT IS ORDERED

(1) that permission to appeal be granted and the appeal be allowed

(2) that the Order of Master O'Hare be set aside

(3) that the detailed assessment be continued in the Supreme Court Costs Office before a Costs Judge other than Master O'Hare

(4) that in no circumstances shall the amount payable by the Respondent to the Applicant exceed £30,000 in the light of the price indication of 21st April 2006 given by the Applicant to the Respondent but that this cap shall not apply to any costs found in the course of such detailed assessment not to have been contemplated by the Applicant in giving the said price indication

AND THE COURT makes no Order for the costs of this hearing.''

4. Following the Judge's order the matter was referred to me to deal with the detailed assessment of Ambrose Appelbe's bills. The first hearing took place on 15 October 2008, and on that date I made a finding as to the extent of the Solicitor's retainer, and the estimate which the Solicitors had given in respect of it, namely the appeal by Ms Helvadjian's former husband against the order of District Judge Green (the Green Order), and her cross-appeal against the same order, together with the potential appeal against the order of His Honour Judge Compston of 24 March 2006 (the Compston Order). I explain the reasons for my decision below. The matter was then adjourned part heard to 19 November 2008, and the bills and papers were gone through in considerable detail. It became apparent that there was a conflict as to the exact instructions which Ms Helvadjian had given to Ambrose Appelbe. The matter was therefore further adjourned part heard, with directions that the Defendant firm should prepare a typed version of Mr Morgan's handwritten attendance note of the conference with Counsel, which took place on 19 May 2006. Neither I, nor Ms Helvadjian could read the handwriting, and Mr Morgan himself found it difficult. A typed copy of the note was produced in accordance with the direction, but even this has numerous passages which are marked ``illegible''.

5. The Claimant who is a litigant in person, in accordance with a further direction, prepared a witness statement setting out her position with regard to her proposed appeal against the Compston order. The matter was re-listed for 14 January 2009.

6. On that date Ms Helvadjian gave sworn evidence in accordance with her witness statement, and was cross-examined by Mr Morgan. Mr Morgan also gave evidence and was cross-examined by Ms Helvadjian. I deal with the evidence in greater detail below. Having heard the evidence judgment was reserved.

BACKGROUND

7. On 21 April 2006 Ms Helvadjian, having been represented in her divorce proceedings by B D Laddie Solicitors, rang Ms Lisa Bolgar Smith of Ambrose Appelbe because B D Laddie had told her they could no longer act for her because of a conflict of interest. Two conflicts have arisen as to the extent of the retainer, ie, as to what Ms Helvadjian asked the Solicitors to do on her behalf. The first is the extent of the initial retainer: did it relate both to the appeal and cross-appeal against the Green order dated 30 September 2005 as Mr Morgan argued; or did it relate in addition to the appeal against the Compston order of 24 March 2006?

8. The second conflict, which only arises if the original retainer covered the appeal of the Compston order, is whether or not Ms Helvadjian instructed her solicitors to proceed with that appeal, or to do nothing about it. The handwritten attendance note dated 21 April 2006 of Lisa Bolgar Smith records that:

``On 24, 25 and 26 of May at the Royal Courts of Justice there is the husband's appeal and the client's cross-appeal, which will take two days reading. The client has no legal background. There have been a series of hearings.

[There is then an illegible line]

No skeleton argument she says, other than for final hearing, lever arch files in 6 to 7 days.''

9. That handwritten note is then translated into a typed attendance note, which says:

``Client phoned.

She has an appeal at the Royal Courts of Justice on 24, 25 and 26 May 2006. It consists of 5 lever arch files full of papers and she reckons there is at least 2 days reading. The final hearing listed between 6 and 7 days.

It is the husband's appeal and also the client's [cross] appeal. The note says ``cost appeal'', but this is obviously ``cross-appeal''. She has got no legal background. She was acting in person. There are a series of hearings following the final hearing, for example directions for the sale of the house. She has got to prepare a skeleton argument. She did have Neil Russell of B D Laddie acting for her but he then discovered there was a conflict as he knew Melvin Langley, who was somebody who had been previously involved in the case.

Client asked for an estimate of our fees for representing her. I told her our initial estimate was £25,000 and we already potentially held Mr Ian Cook, a renowned barrister of 1 Kings Bench Walk to cover the appeal. The client will put us in funds on Monday. I put her through to Van presumably in accounts who gave her our Barclays client account details.

Client will also come in on Monday to sign a client care letter and bring us the papers.''

10. The Solicitors, through Mr Morgan who was an assistant solicitor with the firm and is now an associate solicitor, believed, so he says, that the client was referring to two appeals, namely the husband's appeal and her own cross-appeal. Ms Helvadjian says, in her mind, there was: on the one hand an appeal, namely her husband's appeal and her own cross-appeal, both against the Green order; and on the other hand an appeal against the Compston order, so that when she spoke of there being two appeals, that is what she had in mind. The Solicitors for their part say, they understood she was referring only to the husband's appeal and the cross-appeal against the Green order.

11. There was a meeting on 24 April 2006 between Lisa Bolgar Smith and the client at which Mr Morgan was present for part of the time. Unfortunately, the attendance note for that meeting is not available. If it ever existed, we no longer have it. There is therefore no contemporaneous note of what took place on that day. Ms Helvadjian accepts that she did have a meeting, which lasted about an hour. On the same day, 24 April, a client care letter was sent to Ms Helvadjian setting out the rates for partners and assistants and asking for a sum on account of £25,000.

12. At the meeting on 24 April Ms Helvadjian spent a certain amount of time on the telephone to her bank arranging a transfer of money into the Ambrose Appelbe bank account, and in fact £24,000 was transferred. It is recorded in the ledger on 25 April. On the same date Messrs B D Laddie sent a letter to Ms Lisa Bolgar Smith saying:

``We understand you are meeting Caroline Helvadjian at 11.30 today in order to take on her case. Caroline has requested that I send you her files which I now do. In a plastic envelope on top of the files is a further application notice which has not been served. If I can provide any further assistance to you please do not hesitate to contact me.''

13. On the same day B D Laddie wrote a second letter enclosing a copy letter from Preston & Co, the former husband's solicitors, which said:

``On 21 April just minutes before 4 pm your client served by fax an amended notice of appeal which she signed as a litigant in person. We are prepared to accept this document as her final notice of appeal. However given it was signed herself as litigant in person would you please confirm you are still acting.''

14. The plastic envelope containing a ``further application notice'' is accepted by Mr Morgan to have contained the application for permission to appeal against the decision of His Honour Judge Compston.

15. I have explained (at paragraphs 7 and 8 above) what the conflict between the parties is,...

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