England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM COUNTY COURT
(His Honour Judge Alan Taylor)

		Royal Courts of Justice Strand London WC2 Tuesday 8th May, 2001

LADY JUSTICE ARDEN: I will ask Mr Justice Sumner to give the first judgment.

MR JUSTICE SUMNER:

1. This is an application for permission to appeal by the applicant, Mr Peter Glazier, against the judgment of His Honour Alan Taylor given in the Birmingham County Court on 10th November 2000. By that judgment the applicant was ordered to pay a sum of £4,826 to the respondents, Alexander & Co, his former solicitors.
2. The background to the claim was shortly as follows. The applicant lives at 73 Mill Road, Stourport on Severn. His neighbour at number 71 is Mr Moule. The owner of numbers 75 to 77 Mill Road was a Mrs and Mrs Grant. In 1985 the applicant complained of encroachment on his property by Mr and Mrs Grant. He said that they had caused subsidence to his garage. He and Mr Moule also complained that Mr and Mrs Grant were obstructing their joint right of way to their properties. The applicant instructed the respondent firm. Subsequently Mr Moule also instructed them.
3. Proceedings were commenced in the Chancery Division in 1986. The applicant was concerned about the health of Mr Moule and the strain of the proceedings on him. Accordingly, he took over the larger part of the running of the proceedings. The claim came on for hearing before Hoffmann J (as he then was) in December 1991. On the second day of the hearing the claim was compromised. Mr and Mrs Grant, in effect, conceded liability to the applicant and Mr Moule. Furthermore, they agreed to pay £6,000 towards the costs that the applicant and Mr Moule had incurred.
4. This application for permission to appeal arises from a claim by the respondent firm to recover the balance of their fees arising from that litigation. The £6,000 which Mr and Mrs Grant agreed to contribute was paid in May 1992. Prior to that the respondents had, in February 1992, submitted a bill to the applicant for £12,115. They regarded the applicant and Mr Moule as jointly and severally liable. They deducted £6,000 which was the contribution from Mr and Mrs Grant, and claimed the balance of £6,115, subsequently increased to £6,121.
5. The applicant and Mr Moule were not happy about the amount claimed. They requested a detailed bill to be made out. The respondent accordingly sent the papers to a costs draftsman. He assessed the costs in respect of the joint claim over the right of way at £8,070 and in respect of the applicant's claim at £4,465.
6. In December 1995 the respondent issued proceedings against both the applicant and Mr Moule for that larger sum of £12,535. It was defended. The hearing did not take place, regrettably, until November of last year. It was heard by His Honour Judge Alan Taylor over two days before he gave judgment. At the hearing the respondents were represented by counsel. The applicant acted in person, as he does today.
7. Before those proceedings had concluded, the respondents had applied successfully to discontinue the proceedings against Mr Moule. Apparently he is now some 84 years of age.
8. The learned judge had a number of disputes to resolve. Firstly, the applicant had, during the course of the interlocutory proceedings in the late 1980s, obtained two interlocutory orders in his favour which had resulted in an order for costs in his favour in any event. Some £500 were involved.
9. Secondly, the original bill, which was the one that the judge ultimately took into account, failed to allow for a sum of £795 which the respondents conceded had been paid by the applicant on account. They had failed to give credit for it. That was in addition to a sum of some £5,900 which had already been paid.
10. Thirdly, the question arose whether the respondent could substitute that higher bill of £12,115 for his original of £6,115, one increased to £6,121. The learned judge held that they could not do so. Furthermore, he held that the respondent had not explained to the applicant about the costs order in his favour. He also held, and indeed it was conceded, that credit had not been given for all the sums paid on account by the applicant. As a result of these three matters, the learned judge reduced the amount owed from £12,115 to £4,826. It was for that sum that he gave judgment.
11. He then considered a number of other matters which were raised by the defence and counterclaim put in by the applicant. Most of them have been covered in the grounds of appeal which the applicant has helpfully put before us and in his oral argument this afternoon.
12. He started by accepting that some money is due to the respondent. But he points to what he says are negligent steps by them or other acts of default which have cost him substantial sums.
13. The first point that he raises this afternoon, as indeed he did during the course of the hearing, was that Mr and Mrs Grant had instructed a firm of solicitors called Thursfields. They had originally acted for him in the conveyancing of his property. He felt that gave the defendants, Mr and Mrs Grant, a quite unfair advantage. It prolonged the proceedings, and meant that substantially greater sums were incurred in costs before a settlement could be reached on the second day of the trial.
14. The judge dealt with that in the course of his judgment at page 9, where he rightly expressed great sympathy for the applicant. He went on to say that he regarded it as only a matter of speculation or conjecture about what would have happened if another firm of solicitors had acted. Therefore he did not consider that it gave rise to any claim in damages. That being so, and there being a clear finding of fact in relation to that, for my part on this application I do not see how the applicant can realistically set aside that finding of fact.
15. The next matter raised by the applicant was that during the course of the proceedings before Hoffmann J he was represented by Mr Boggis QC, now His Honour Judge Boggis QC. The judge made it clear at an early part of the proceedings that he knew Mr Boggis. He said that if the trial was going to involve any criticism of Judge Boggis QC, he would find it difficult to try the matter.
16. The applicant regards that today as an unfair restraint upon what the proceedings could properly cover. I am in no doubt that at the hearing the judge very properly made it clear that there was a difficulty in his trying the case if there were to be criticisms made of Judge Boggis QC. Accordingly, he was giving the parties an opportunity to have the case moved to another judge to try it if they felt that that was an issue which was likely to arise.
17. I understand that the applicant considers that a restraint upon him. Having read through all the papers, there was in fact no criciticism of Judge Boggis QC which he might have raised. Accordingly I can see no disadvantage I can see no disadvantage that was caused. Furthermore it seems clear that at the time the applicant was content for the matter to be dealt with in that way.
18. He also says that the settlement, with £6,000 being contributed towards his expenses, meant that the respondents gave an estimate of his costs at that time of £12,000. The defendants were making a contribution of 50 per cent. Certainly it seems that at some stage a figure of £12,000 was mentioned. The applicant is satisfied that, despite what the respondents may have said at the time, the figure did not in fact come from Mr Boggis.
19. There is nothing that I have read in the papers which suggests that there was any question of the Grants making a 50 per cent contribution. Rather it was the maximum sum that the Grants said they were able to raise and offer by way of settlement. It was, as the order recounts, a contribution towards the costs. Regrettably, for my part, I do not see that there is any complaint which the applicant can now successfully make in relation to that.
20. The applicant is also concerned about a statement made by the respondents during the course of the proceedings which ended last November. Mr Alexander, the solicitor concerned, said that his conduct had been investigated by the Law Society. Nothing of substance had been discovered.
21. The applicant says that is not in fact the correct position. No papers have ever been produced which show that there has been any such investigation. Again I understand the applicant's concerns about that. If it was inaccurate, it does not seem to me that it leads to either a new head of claim, let alone any prospect of further reducing the bill which they produced and which the judge reduced so substantially.
22. He points to various matters of complaint about the way the respondents carried on the litigation, both in the first action culminating in the compromise in 1991 and subsequently in relation to their claim against him. Principally, he says, they failed to keep him sufficiently abreast of the level of costs as they were mounting up during the course of the original proceedings. That was a matter which the learned judge had in his mind and considered during the course of his judgment. I do not consider that anything now can arise on that.
23. He also complains that for some three years following the conclusion of that litigation it was very difficult to get any proper accounts out of the respondent. Not only did they put in one bill and then try and double it, but they were unable to set out accurately the amount of money that he had paid on account of his costs up to that time.
24. In my judgment, if all that were sufficiently established, he would have grounds for complaint about the way they conducted themselves in the course of this litigation. But the respondent having conceded the further sum of some £700 during the course of the hearing, I am not satisfied that the unfortunate and unhappy way that they conducted the litigation caused the applicant to suffer any further loss.
25. He raises next the question of the £12,000 which was mentioned. It was, he says, wildly inaccurate. He points out that if you take into account their bill of some £12,000 (as subsequently submitted), allow for the sum of over £5,000 paid on account of costs and the £6,000 contribution from Mr and Mrs Grant, his total costs were very much more than that.
26. I see the cause for concern. But I am not satisfied that it gives rise to any claim now that the bill has been so substantially reduced. Nor am I satisfied that there is any legitimate claim in relation to either the settlement at the time or the claim thereafter which now arises.
27. He complains that the accounts were not properly kept by the respondent. He points to the fact that sums which Mr Moule had paid in respect of his own matter were credited to him. They did not keep a proper account of all the sums that he had paid. It is a fair criticism, but I am not satisfied that the sums at the end of the day were inaccurate. If they had been, the judge would have seen that. He would have properly give him credit for any further sums over and above those he already did.
28. The applicant next points to the whole of this litigation and the impact it has had on him and his family. It seems that this litigation in some form or other has been going on for about 16 years. This is the last round in that very lengthy process. The strain on parties of litigating and then having to litigate with their own solicitor afterwards is very substantial, and not to be underestimated. But there was no claim before the judge for damages relating to that. It is difficult to see how that could have been successfully claimed, even allowing for the length of time that it took; litigation always has its own strains.
29. The next point taken by the applicant is his great difficulty in preparing himself to meet the claim made by his solicitors. As he graphically described it before us this afternoon: how can you argue against a work of fiction? I see the point that he makes. But happily the learned judge was also well aware of this, and the fact that the claim before him was reduced from over £12,000 to under £5,000 is an indication of that.
30. That concludes my review of the applicant's points. I have however in the course of this unhappy history and having much sympathy for the applicant, looked very carefully through the papers. I have tried to see if there are other points which could help him, bearing in mind he acts in person. But at the end of the day I have found none. For my part I see no realistic prospect of success. I would dismiss this application.
31. LADY JUSTICE ARDEN: I agree that this application must be dismissed.
32. Mr Glazier has put his submissions very fairly and cogently, both in writing and orally. It is lamentable that a solicitor should present a lay client with a claim for costs with as many deficiencies as this one had. It undoubtedly put Mr Glazier to a great deal of trouble and inconvenience. But for the reasons which have been given by my Lord, Mr Justice Sumner, I think that there is no prospect of reducing the ultimate figure or that there is any real prospect of success on appeal in this case.
33. Accordingly, the application must be dismissed.
ORDER: Application for permission to appeal refused. (Order not part of approved judgment)