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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Innocent v Hill [2001] EWCA Civ 773 (11 May 2001)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/773.html
Cite as: [2001] EWCA Civ 773
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
(JUDGE GOLDSTEIN)
Strand, London WC2 |
||
B e f o r e :
-and-
MR JUSTICE SUMNER
____________________
| STEPHENS INNOCENT | CLAIMANT/RESPONDENT | |
| - v - | ||
| KEITH HILL | DEFENDANT/APPELLANT |
____________________
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HG
Telephone No: 0171-421 4040/0171-404 1400
Fax No: 0171-831 8838
Official Shorthand Writers to the Court)
MR J RILEY (instructed by Messrs Finers Stephens Innocent) appeared on behalf of the Respondents.
____________________
Crown Copyright ©
- LORD JUSTICE MUMMERY: This is an appeal brought with the permission of this court. The appellant is Mr Keith Hill. The respondents are a firm of solicitors, Stephens Innocent. Mr Keith Hill appears in person. Stephens Innocent are represented by counsel, Mr Riley.
- The background to the matter was fully considered by this court when the application for permission to appeal was before it on 6th December last year. In brief, it is a dispute between a solicitor and a client. Mr Hill retained Stephens Innocent to deal with a trademark dispute relating to the mark "Jazbar" which Mr Hill wished to protect in the face of a registration application for the mark "Cafe Jazbar" by a company called Golden Rose Communications Plc, trading as Jazz FM. Their solicitors were Simmons & Simmons.
- The solicitor with Stephens Innocent who dealt with this matter was Liza Boyd. The matter came to court when Stephens Innocent sued Mr Hill for unpaid fees. They claimed in proceedings started on 14th July 1999 the total sum of £1,698.67. Mr Hill defended the case and put in a counterclaim, making numerous complaints against Stephens Innocent, negligence being the least of them. Stephens Innocent applied for summary judgment on their claim and to strike out Mr Hill's defence and counterclaim. Those applications were granted by District Judge Lightman on 16th November 1999. The appeal against those orders was dismissed by His Honour Judge Goldstein on 24th March 2000.
- Mr Hill then sought permission to appeal. It is a second tier appeal. So there is a high hurdle to overcome. He overcame it when the matter came before this court on 6th December last year in respect of one part of his appeal. That was as to the amount in fact due from him to the solicitors. As explained in the judgments given by Lord Justice Keene and myself given on that occasion, evidence was produced by Mr Hill at the hearing, indicating that he had paid a substantial part, at least half, of the sum claimed against him and for which Stephens Innocent had obtained judgment. Both Lord Justice Keene and myself alerted the parties to the possibility of using the Court of Appeal's ADR scheme. Unfortunately, that did not produce a resolution of this dispute. So the appeal on the limited basis mentioned has come back to the court today.
- Mr Hill has made a large number of points complaining about the way in which he has been treated by Stephens Innocent. His arguments can be reduced for the purposes of deciding this appeal to two main points. Before dealing with those, I should mention that Mr Riley has accepted in his skeleton argument that, in the light of the cheques and bank statements disclosed by Mr Hill, Stephens Innocent are prepared, for the purposes of this appeal, to accept that the figure due from Mr Hill to them is £806.73. That is, as already indicated, about half of the judgment sum. Mr Riley has attached to his skeleton argument calculations showing the dates on which invoices were submitted and the sums received from Mr Hill. The sums, as calculated according to that table, produce an amount of £806.73 due from Mr Hill.
- Mr Hill makes two points. First, he says that the arithmetic is not correct and that the sum in fact due on the material available is £406.60 not £806.73. His second point is potentially a more fundamental one. He says he does not owe them anything, because the whole of this judgment was obtained on the incorrect basis. He has produced a document that I have not seen before and I do not think that Mr Riley has seen before. It is a letter dated 21st July 1997 from Stephens Innocent to him. It starts, "Dear Mr Hill". Then there is a heading, "Fees in contentious matters". It then states:
- Then the relevant item is "solicitor £125 per hour". Now, the point raised by Mr Hill is that when one looks at the invoices sent to him, and on the basis of which judgment was obtained, the time of Liza Boyd described as solicitor is charged at the rate of £125 per hour. He then points to the judgment given by Lord Justice Keene on 6th December, dealing in some detail with a dispute which had arisen at that hearing under the Solicitors Rules as to whether the business that Stephens Innocent were dealing with for Mr Hill was contentious or non-contentious. Lord Justice Keene says in paragraph 22 that Mr Riley argued that the business with which Stephen Innocent was dealing was contentious rather than non-contentious. Lord Justice Keene sets out the basis of Mr Riley's submission. Having considered that submission at some length, the conclusion of Lord Justice Keene, with which I concurred, was that the business dealt with by Stephens Innocent by Mr Hill was in fact non-contentious business. The point which Mr Hill takes from that is if it was, as held on that occasion, non-contentious business, then there is no evidence before the court as to what rate was charged by Stephens Innocent for a solicitor doing non-contentious business. The only evidence is the letter of 21st July 1997 as to what were the fees in contentious matters. This was not a contentious matter. So, he says he has been invoiced on the incorrect basis and we should therefore allow the appeal and set aside the whole of the judgment. The matter should not simply be left in the reduced amount, either at the figure suggested by Mr Riley or the lower figure which Mr Hill says is due on the arithmetic.
- Mr Riley says in response that this point has not been raised before. It was not raised at the appeal before His Honour Judge Goldstein. It was not raised in this form at the hearing of the application for permission to appeal on 6th December. He also submits that the invoices indicate that in fact the rate per hour, £125, for the work of Liza Boyd solicitor was the same as was set out for fees in contentious matters; and that was the rate at which Mr Hill agreed fees should be charged, whatever description was put to the work – contentious or non-contentious.
- When we asked Mr Riley for evidence in support of this he made two suggestions. The first was that we ask Mr Hill to produce what documents he has which may relate to any separate and different charging for non-contentious business. The second was to adjourn the matter to enable the point to be investigated and then come back with the results of that.
- The conclusions which I have come to on this appeal are these. First, I am satisfied by the material produced as summarised in Mr Riley's skeleton argument, and by the material attached to it that the arithmetic done by him is correct. The result of that is that we would allow the appeal in Mr Hill's favour and reduce the judgment from £1,698.67 for the fees to the sum of £806.73.
- As to the dispute about whether that sum is in fact due I would take this course. I would remit to the District Judge the question whether Mr Hill has been invoiced on the correct basis of hourly charging for a solicitor doing non-contentious business. I would remit that to the District Judge rather than adjourning this appeal for this court to determine it, for the simple reason that this is a Court of Appeal existing for the purposes of deciding whether the decisions of lower courts have been correctly reached. It is not a court of first instance which is appropriate for deciding questions of disputed fact. This turns out to be such a case. It may require further documents or further oral or affidavit evidence to clarify the matter before it can be decided. Therefore, the order which I propose to make is to allow the appeal, to set aside the judgment of the District Judge made on 16th November 1999 save as to the sum of £806.73 and to remit to the District Judge the determination of whether the invoices on which that sum is based have been correctly prepared in relation to the hourly rate of a solicitor for non-contentious business. He may vary the judgment sum accordingly. I would point out that the costs of that exercise will be a matter which will be for the District Judge according to his determination of the merits of that particular dispute.
- As to the costs of this appeal, we will now hear submissions from Mr Hill and Mr Riley.
- MR JUSTICE SUMNER: I agree with the judgment which has just been given.
- Appeal allowed: Judgment of District Judge Lightman set aside save as to sum of £806.73; remit to District Judge for his determination of whether the invoices on which that sum is based have been correctly prepared in relation to the hourly rate of a solicitor for non-contentious business. Costs: No order as to costs today; District Judge free to consider reassessment of costs order issued below.
"This letter sets out the basis on which Stephens Innocent agrees to be retained by you in relation to this matter. (1) Our expense rates are at present..."