ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
HIS HONOUR JUDGE SEYMOUR QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE JACKSON
LORD JUSTICE GROSS
| LYGOE TRADING AS DAVID PARRY & CO,
A FIRM NO LONGER IN PRACTICE
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Mr Stuart Cakebread (instructed by Curry Popeck) appeared on behalf of the Respondent.
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Lord Justice Gross:
"72. However, Mr. Cakebread submitted that, depending upon my findings, I might be able to go further and to dismiss the claim of Mr. Lygoe. That submission was founded upon the fact that I might find that the total of the amounts claimed by Mr. Lygoe in respect of the bills properly payable in principle by Mr. Ilsley was less than the amount which Mr. Lygoe accepted that he had already received. That is indeed the position. On the face of paragraph 6 of the Amended Particulars of Claim Mr. Lygoe accepted that he had received a total of £91,058.14. That sum did not include the amount of £23,500 which had been retained by Mr. Lygoe from the Estate Funds. When the sums of £91,058.14 and £23,500 are added they come to £114,558.14. The total of the sums which Mr. Lygoe claimed in bills which I have found were in principle the liability of Mr. Ilsley came to £92,967.67. On those figures the claim fails and is dismissed. In expressing that conclusion I do not overlook the fact that a final bill in respect of the administration of the Estate has yet to be delivered and that the proper amount of that bill is accepted to be a liability of Mr. Ilsley. However, I accept the submission of Mr. Cakebread that those matters cannot be dealt with in the present trial by reason of the fact that no sum in respect of the administration of the Estate is yet due because no bill has been delivered. What has to happen is the delivery by Mr. Lygoe of a final bill, which, if so advised, Mr. Ilsley can then have assessed as to its propriety in the usual way. All of that has to take place outside the context of the present action.
73. The purpose of the assessment of the bills for which I have found Mr. Ilsley to be liable in principle will in fact be to enable the Court to calculate the sum which is due to Mr. Ilsley in respect of his counterclaim. Subject to the swearing by Mr. Ilsley's sister of an affidavit to the effect that she will not hereafter seek to pursue any claim against Mr. Lygoe in respect of the administration of the Estate, it was accepted that Mr. Ilsley alone was a proper party to pursue the counterclaim which had been pleaded on his behalf. It was also accepted that, in practical terms, at least, the appropriate way in which to proceed in assessing the sum due to Mr. Ilsley on his counterclaim was to evaluate the sum which was properly due from him to Mr. Lygoe, and then to see by what amount sums paid to Mr. Lygoe, or taken by him from the Estate Funds, exceeded the amount due from Mr. Ilsley to Mr. Lygoe. ..."
"The claimant has provided no good reason for failing to lodge disbursement receipts, including counsel's fees notes and has provided no evidence to show that counsel has even been approached. I can see no good reason why disbursement vouchers including counsel's fees have not been lodged."
Lord Justice Jackson:
Lord Justice Carnwath:
Order: Appeal dismissed