No.5 of 2001
O’Shea v Abbey National
29 June 2001
Mr Justice Grigson sitting with Assessors
Appeal before Grigson J sitting with Assessors on 29 June 2001
The Claimant in this case had defaulted on his mortgage with Abbey National as a result of which possession proceedings had taken place. Under the terms of the Claimant’s mortgage, the Abbey National was entitled to add the costs of the possession proceedings to the advance. Concerned at the level of these costs the Claimant issued proceedings in person under the Solicitors Act and obtained an order for detailed assessment of the Abbey’s solicitors charges, Messrs Shoosmiths. Following 1½ days argument, the Claimant secured very modest reductions and failed to beat the one fifth rule. He was ordered to pay the costs of reference and the Master refused permission to appeal on the grounds that there were no reasonable prospects of success, disproportionate costs would be incurred in an appeal and there was no breach of the Claimant’s human rights.
The Claimant applied to Mr Justice Gray for permission to appeal. This was given on the grounds that:
"In the absence of any documents relating to the hearing and the assessment before the Costs Judge, it is impossible for me to say whether an appeal would have a realistic prospect of success. Bearing in mind that the Appellant is acting in person, I think that the convenient course is to grant permission."
The appeal came before Mr Justice Grigson sitting with assessors (Anthony Cowen and myself) on 29 June 2001. At the outset of the hearing, the usher informed the Judge that the Claimant now had a solicitor acting for him. However it transpired during the course of argument that the Claimant’s representative was a legal executive who had assisted as a McKenzie Friend during the detailed assessment. The Judge permitted him to continue as an advocate on the Claimant’s behalf.
The Claimant had served a lengthy notice of appeal taking wide ranging points. These were largely abandoned by the legal executive who confined his submissions to two principal issues:-
(1) The bills which had been rendered to the Abbey National by Shoosmiths were not proper bills because they were unaccompanied by narratives and did not comply with the Solicitors Act. The Judge dismissed this submission for three reasons. First, the point had not been taken before the Master. Second, the Claimant had consented to the order for detailed assessment of Shoosmiths bills and thereby had waived any right to argue that they did not comply with the Solicitors Act. Third, the Master had found as a fact that the narratives had been attached to the invoices; this was a decision he was entitled to take on the evidence before him and was not now susceptible to appeal.
(2) The Master had been wrong to deduct disallowances from the breakdowns of the bills and should, instead, have applied the reductions to the gross sum bill. The Judge rejected this submission. He said that it was common practice for solicitors to round down bills and that as Shoosmiths had not charged Abbey National as much as they could reasonably have done, this was to the Claimant’s advantage since he was ultimately responsible for payment of their accounts.
The Master had assessed the invoices at £14,021.33 inclusive of VAT plus £6,218.75 costs. The Defendant’s schedule of costs for the appeal including VAT claimed £8,973.60. On advice from the assessors, the Judge allowed £5,000 plus VAT. Of this sum, £1,209 plus VAT represented the cost of a transcript of the hearing before the Master which was obtained subsequent to the application to Gray J. In his Notice of Appeal, the Claimant had contended that the Master had prevented him taking advice from his McKenzie Friend and that no account had been taken of the Claimant’s assertions that the claims for timed letters and telephone calls were unreasonable. The transcript revealed that the Claimant’s submissions had no basis or foundation which was probably the reason why the appeal on these points was abandoned.