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Between: JOHN ROWE v. JENNY LINDSAY [2001] EWHC Admin 783 (28th June, 2001)

Case No: CO/4737/2000
Neutral Citation Number: [2001] EWHC Admin 783
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
28 June 2001

B e f o r e :
LORD JUSTICE ROSE
MR JUSTICE SILBER
MR JUSTICE STANLEY BURNTON
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Between:
	JOHN ROWE	Appellant
	- and -
	JENNY LINDSAY	Respondent

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Siward Atkins (instructed by Denton Wilde Sapte ) for the Appellant
Robert-Jan Temmink for the Respondent
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Judgment
As Approved by the Court
Crown Copyright ©
MR JUSTICE STANLEY BURNTON:
Introduction

1. This is the judgment of the Court on Mr Rowe's appeal.

2. On 2 October 2000, at the beginning of the hearing of the Respondent's application to the Solicitors' Disciplinary Tribunal complaining of professional misconduct on the part of the partners of the firm of Ironsides Solicitors, the Tribunal gave consent for the withdrawal of her application against John Rowe, the Appellant, and a former partner of that firm, and ordered her to pay to him as his legal costs the sum of £400 plus VAT. His actual legal costs were considerably more than that sum. He appeals against the order made in respect of his costs. He contends that the decision of the Tribunal to award him only a small portion of his costs was unreasonable and perverse, that the reasons given for it were defective; that the decision was clearly wrong; and that this Court should order the Respondent to pay him all his costs, which this Court should assess.

3. The Respondent contends that the costs order was properly made by the Tribunal in the exercise of its discretion and cannot and should not be interfered with.
The facts

4. In October 1998 Miss Lindsay joined Ironsides as a legal assistant, with a view to her taking the Law Society's Final and qualifying as a solicitor. Mr Rowe was then an equity partner in the firm. In February 1989 she became a trainee solicitor. In June 1989 she applied to the firm for financial assistance. It was refused. At around the same time the firm did give financial assistance to other trainees. They were white; Miss Lindsay is black. In July 1990 she took her Law Society Finals. She failed 4 papers, which meant that she would have to retake the examination. The firm decided not to continue her training contract and to terminate her employment. In previous years other white trainees who had failed their exams had been given money towards their re-sits and told that they could return to the office when they had retaken their Finals. Miss Lindsay left the firm on 31 January 1991.

5. Mr Rowe had worked in the firm's Northampton and Wellingborough offices. Miss Lindsay had worked at their offices in Leicestershire. According to his solicitors' letter of 3 July 2000, he was out of the office through sickness at the time of the firm's refusal in June 1989 to assist her with funding. He had left the firm in the summer of 1990. He was not involved in its management after June 1990 and he was not a partner when the decision was made to dismiss Miss Lindsay.

6. Miss Lindsay instituted proceedings against the firm of Ironsides before an Industrial Tribunal alleging that the firm had unlawfully discriminated against her. The Industrial Tribunal found that the firm had unlawfully discriminated against her in two respects: in refusing in June 1989 to provide her with funding, and in dismissing her. Mr Rowe was not a party to those proceedings and was never served with them.

7. Miss Lindsay then approached the Office for the Supervision of Solicitors. In July 1997 they found that Ironsides had breached Rule 1 of the Solicitors' Practice Rules in that they had compromised the good repute of the profession, but they resolved to take no further action.

8. In November 1998, Miss Lindsay made her application to the Solicitors' Disciplinary Tribunal against Ironsides as a firm. Her complaint was that the firm had unlawfully discriminated against her in making the decision to refuse her funding in June 1989 and in dismissing her. On 30 September 1999 the Tribunal held an interlocutory hearing to identify the proper respondents to her application. The Tribunal decided that all of the equity and salaried partners of the firm during the times material to her application should be named respondents. They of course included Mr Rowe. From that date he was a party to the Tribunal proceedings.

9. On 10 February 2000, Mr Rowe's solicitors wrote to Ms Lindsay asking her to reconsider whether it was appropriate for him to be made a respondent, setting out the facts relevant to his position, and stating that if the allegations against him were ultimately dismissed, they would ask for an order for costs in his favour. Ms Lindsay replied promptly. Her letter of 12 February 2000 stated:

"As you are aware, some of the material decisions taken by the firm date back to 1989. Therefore, I shall not withdraw my application against Mr Rowe who would have ratified those decisions of the management committee."

10. On 30 May 2000, Mr Rowe's solicitors wrote to Ms Lindsay's solicitors, who had been recently instructed, expressing the hope that they would consider the merits of the case against Mr Rowe. In their reply of 16 June 2000, Ms Lindsay's solicitors indicated that she would be prepared to agree to withdraw against him on the basis that each of them would bear their own costs. In their letter of 3 July 2000, Mr Rowe's solicitors stated that he would agree to accept a contribution of £400 to the costs he had incurred of £637 plus VAT. Following further correspondence, Ms Lindsay's solicitor wrote on 24 July 2000, stating:

"... my client will release your client from the proceedings on the basis that there be no order for costs.
If your client is not prepared to agree to same then I am instructed to continue to proceed against your client for the reasons outlined above."

11. In early September 2000, Ms Lindsay offered to dispose of the application against Mr Rowe by paying £150 towards his costs. In their response, Mr Rowe's solicitors argued that he could not be found guilty of professional misconduct on the basis of purely vicarious liability for the acts of his partners. Ms Lindsay's letter of 26 September indicated that she did not accept this: she referred to a case in which a solicitor had not been personally culpable, but had been fined and had to pay the costs. In their letter of 27 September 2000, Mr Rowe's solicitors stated that his costs to date were £985, and that their estimate of future costs if the case went forward was over £10,000. Nonetheless, they offered to settle the case if Ms Lindsay agreed to make a contribution of £400 plus VAT towards his costs. Ms Lindsay replied immediately by fax on 28 September 2000, making it clear, for the first time, that the only issue between her and Mr Rowe was costs, and that she was not seeking a finding of misconduct against him, and maintaining her offer of £150, which would be open until the start of the hearing.
The Tribunal's decision

12. The hearing before the Tribunal took place on 2 October 2000, the Monday after the Thursday of 28 September. The question of withdrawal against Mr Rowe was dealt with first. Ms Lindsay's counsel and Mr Rowe's solicitor set out the facts summarised above and went through the correspondence. Ms Lindsay's counsel submitted that there be no order for costs; Mr Rowe's solicitor asked for his costs. Mr Rowe's solicitor, Mr Fairbairn, did not mention any figure or deal with the amount of his costs, other than to refer to his letter of 27 September.

13. The Chairman of the Tribunal, Mr Yeaman, granted leave for the application against Mr Rowe to be withdrawn and, as stated above, ordered costs of £400 plus VAT to be paid by Ms Lindsay. Mr Fairbairn protested that he had not addressed the Tribunal on the quantum of costs; he stated that his client's costs were over £2000, because a lot of work had been done before the receipt of Ms Lindsay's fax of 28 September 2000. He stated that the sum of £400 barely covered the cost of coming to the Tribunal hearing that day. The Chairman stated:

"Mr Fairburn (sic), we understood that. Nevertheless, our order was for £400 plus VAT."

It is apparent, therefore, that the Tribunal was aware that it was awarding Mr Rowe only a small part of the costs he had incurred.

14. The Tribunal's written Findings against the Respondents to Ms Lindsay's application included the following paragraph:

"The Tribunal made an Order for costs in favour of Mr Rowe. The quantum of costs had been discussed between Miss Lindsay and those instructed by Mr Rowe , who had indicated that £400 would dispose of the matter. Despite the fact that Mr Rowe had been represented at the hearing when the Tribunal consented to the withdrawal of the allegations against him, the Tribunal considered it right to fix the costs at that level. Miss Lindsay had already indicated her willingness to withdraw. It is one of the burdens of being a solicitor that one must deal with question's as to one's professional conduct from time to time. The Tribunal did not think it right to require Miss Lindsay to pay any greater figure."

Discussion

15. Mr Temmink, on behalf of Ms Lindsay, rightly accepted that in this passage the Tribunal gave its reasons for the order for cost that it had made. Mr Atkins, for Mr Rowe, submitted that the reasons given for their decision were factually incorrect or bad in law. We agree with his criticisms of the reasons given by the Tribunal. So far as the first reason given by the Tribunal is concerned, Mr Rowe's early indication that £400 would dispose of the matter was not a reason to award him that sum when his offer had not been accepted and additional costs had subsequently been incurred by him. Ms Lindsay had not unconditionally indicated her willingness to withdraw until 28 September, a few days before the hearing, by when significant costs had been incurred. Mr Atkins on instructions confirmed that until receipt of that fax Mr Fairbairn had been preparing for a substantive hearing: hence the amount of costs set out in the schedule of Mr Rowe's costs placed before us. Ms Lindsay's willingness to withdraw at that late date was no justification for a reduced order for costs.

16. So far as the second reason given by the Tribunal is concerned, the fact that a solicitor may have to deal with questions as to his professional conduct from time to time is no reason to deprive him of his costs if he is successful in proceedings before the Solicitors Disciplinary Tribunal. A similar comment might be made in relation to civil actions for professional negligence, but could not justify depriving a successful professional man of any part of his costs in such proceedings.

17. Mr Temmink pointed out that the power of the Tribunal to award costs is contained in Rule 22 of the Solicitors (Disciplinary Proceedings) Rules 1994:

"Upon the hearing or determination of any Application the Tribunal may in the case of an application against a solicitor, former solicitor, or registered foreign lawyer without finding any allegation of unbefitting conduct proved against the respondent or in the case of an application in respect of a solicitor's clerk, without making any Order under section 43(2) of the Act nevertheless order any party to pay the costs if having regard to his conduct or to all the circumstances, or both, the Tribunal shall think fit."

He reminded us that the Tribunal is not a civil court, and submitted that the practice relating to civil costs is not applicable to proceedings before it. He also submitted that the decision of the Tribunal was justified by the fact that, as he stated in his skeleton argument, there had been misconduct on the part of Mr Rowe "in circumstances where he was bound by the actions of his colleagues". In this connection he relied on the findings of the Industrial Tribunal and the Office for the Supervision of Solicitors, and the Tribunal's decision to join Mr Rowe as a respondent, which had not been challenged. He submitted that in any event the costs order was one that the Tribunal was entitled to make in the exercise of its discretion.

18. This Court is always reluctant to interfere with the decisions of a Solicitors' Disciplinary Tribunal, for the reasons explained by Sir Thomas Bingham MR in Bolton v Law Society [1994] 1 WLR 512. That reluctance is enhanced in relation to a Tribunal's exercise of discretion in relation to costs. But if such a discretion is exercised in a plainly wrong manner, this court must put matters right.

19. We agree that the Tribunal is not bound to follow the practice of the civil courts in making orders for costs. However, we do not read Rule 22 as justifying an order for costs against a successful respondent who has been acquitted of misconduct, and whose conduct in relation to the matters in question before the Tribunal and since the commencement of the proceedings against him has not in the event been criticised.

20. We reject Mr Temmink's reliance on the findings of the Industrial Tribunal and the Office for the Supervision of Solicitors for three reasons. First, they were not mentioned by the Tribunal in its reasons. Secondly, Mr Rowe was not a party to either the Industrial Tribunal or the OSS proceedings: they related to the firm of which he had ceased to be a partner. Thirdly, the vicarious liability of a partner for the acts of his partners, referred to in the skeleton, cannot of itself justify a finding of misconduct by a Solicitors' Disciplinary Tribunal.

21. That is not to say that on a complaint of racial discrimination on the part of a firm, a solicitor partner can only be found guilty of misconduct if he personally committed an act of discrimination. As the Tribunal held in the case against Mr Rowe's former partners, a firm is responsible for ensuring that their partners and employees are aware of the need to ensure equal treatment, and must establish practices and procedures to ensure that their staff and clients and others with whom they come into contact receive equal treatment. The Tribunal rightly considered that racial discrimination by solicitors cannot be tolerated. We entirely endorse the Tribunal's criticisms of the manner in which Ms Lindsay had been treated.

22. Mr Temmink's reliance on the Tribunal's joinder of Mr Rowe was similarly misplaced: his joinder was an interlocutory decision that involved no finding against him. Indeed, he was not given notice of the application to make him a respondent to Ms Lindsay's application. Similarly, no reliance could be placed on the Tribunal's findings against the other partners of Ironsides: they were made after Mr Rowe had ceased to be a party to the proceedings.

23. Fairness requires that a respondent who has protested and explained his innocence and against whom a complainant has ultimately conceded that she is not seeking a finding of misconduct should be awarded his costs in the absence of a good reason for a different order to be made. The fact that Mr Rowe would have agreed to accept a relatively small, and in our judgment reasonable, sum on account of his costs at an early stage could not justify his being deprived of his eventual costs in circumstances where his offer was rejected and the proceedings against him continued. The reasons given by the Tribunal for its costs order, which as it knew covered only a small part of Mr Rowe's costs, were bad. Indeed, we consider that the order could not be justified and was clearly wrong. In those circumstances, this Court is free to interfere with the Tribunal's exercise of its discretion.

24. In the circumstances of this case, Mr Rowe was entitled to an order that Ms Lindsay pay the costs he had reasonably incurred. Mr Atkins placed before us a schedule setting out those costs amounting to £3,006.83 including VAT. Mr Temmink was not able to criticise it. We therefore allow this appeal and quash the order for costs made by the Tribunal. We assess Mr Rowe's costs at the sum of £3,006 including VAT and substitute an order that Ms Lindsay pay him as his costs in the proceedings that sum less the sum of £470 already paid by her, the balance being the sum of £2536.

***********
LORD JUSTICE ROSE : For the reasons given in the judgment of the court, which has been handed down, this appeal is allowed. The Tribunal's decision as to costs is quashed and the respond will pay the appellant's costs in the further sum of £2,536.
MISS HUTTON : My Lords, may I just clarify that that sum excludes VAT?
LORD JUSTICE ROSE : Does it? It includes VAT because the costs were assessed at £3,006 including VAT, credit being given for £470, the net result is £2,536 including VAT.
MR JUSTICE STANLEY BURNTON : You will see in the final judgment that the last sentence or so has been changed as a result of your instructing solicitor's fax, but the sum is the same.
MISS HUTTON : I am grateful. My Lords, I appear for the appellant, Mr Atkins apologises he is unable to attend. I would ask that the appellants be given their costs. I hope you have a copy of the appellant schedule, total----
LORD JUSTICE ROSE : No.
MR JUSTICE STANLEY BURNTON : We have the schedule that we had last time.
LORD JUSTICE ROSE : You are referring now to the costs of the appeal, are you? I have not seen any schedule in relation to that at all.
MISS HUTTON : May I hand up a copy? I understood it had been filed.
MR JUSTICE SILBER : Has a copy been served on the other side?
MISS HUTTON : My Lord, yes.
MR JUSTICE STANLEY BURNTON : We had a schedule on the last occasion totaling £4,727.
MISS HUTTON : My Lord, it has been amended slightly.
LORD JUSTICE ROSE : Where has the additional £500 come from?
MR TEMMINK : My Lords, I can help, if that would be of assistance. It is counsel's fee for attending for picking up the judgment today.
LORD JUSTICE ROSE : I see.
MR TEMMINK : And additional work from her instructing solicitors to deal with briefing her and I think the solicitor or the legal executive who sits behind her.
LORD JUSTICE ROSE : Yes, I see. Thank you very much. Yes, well you are asking for a summary assessment of that, are you?
MISS HUTTON : My Lord, yes, if it is appropriate given the length of the hearing before this court. My Lord, we ask for our costs on the basis that following the general rule that the appellant won the appeal----
LORD JUSTICE ROSE : Well, I think you can assume we are fairly familiar with that rule.
MISS HUTTON : My Lord, I will also ask the court to take into account that although the claim is relatively small, compared to the costs claimed, that is not in itself reason for reducing the costs. It is recognised at paragraph 11 of the practice direction, which recognises that a claim for a small sum will often incur a higher proportion of costs than a larger claim and that should not make those costs be disallowed.
My Lord, I would also ask to hand up details of Part 36 offers that were made by the appellant both in November and in April of this year. Those offers have been improved upon by the appellants. The decision of this court allowing the appeal, on that basis, I would ask for costs on an indemnity basis. May I hand that up?
LORD JUSTICE ROSE : What are those? Is that the correspondence we have already seen or not?
MISS HUTTON : These are part 36 offers, my Lord. My Lord, if I may summarise, there was an offer made on 15th November. That offer was if the respondent agreed to an order for her to pay the costs of the original hearing, to be assessed, if not agreed, the appellant would accept a discount from that assessment of £500. The appellant has clearly done better than that offer and better than the subsequent offer made on 17th April as the first offer was made before this appeal the appellant's notice was filed in the matter, I would ask that all the costs of the appeal to be assessed on the indemnity basis.
LORD JUSTICE ROSE : Thank you. Mr Temmink, what do you say?
MR TEMMINK : My Lord, I think I probably have to concede the principle; those letters are fairly clear. My Lord, can I just deal with two very minor points to deal with the judgment? The first is that at paragraph 20 reference is made to my skeleton argument. It was not mine, it was my lay clients and I simply argued it on her behalf.
LORD JUSTICE ROSE : It is a pity you did not tell us that before this morning, because the purpose of sending the judgment out is so that corrections can be made.
MR TEMMINK : My Lord, I am afraid I have been in court elsewhere and I only got back late last night and then I was told by my clerk that I was appearing this morning. I had understood that----
LORD JUSTICE ROSE : Which paragraph is it?
MR TEMMINK : It is paragraph 20.
MR JUSTICE STANLEY BURNTON : It is for me to apologise to.
MR TEMMINK : My Lord, it is such a small point. The second point is this, it is perhaps even smaller, at the front of the judgment my name is cited and it is said that I am instructed by Lucas and Co. Lucas and Co are the solicitors firm where Miss Lindsay used to work. They did not instruct me. It was direct professional access from Miss Lindsay herself, so I had no instructing solicitor.
LORD JUSTICE ROSE : Right. Thank you.
MR TEMMINK : If I can deal with the costs point and deal with the costs of this appeal, I say firstly that the hourly rate is inappropriate. Mr Fairbairn is a solicitor at the Milton Keynes office of Denton Wilde Sapte. Milton Keynes County Court and the other courts in that area have agreed a local rate, that rate is £125 for the period while the action was taking place and £140 for the present time. Now, whilst my Lords are not bound to stick to that rate, it is the usual practice to order that rate and I say that if Mr Fairbairn charged his client a premium and his client decides to pay it that is no reason why that higher rate should be payable as between us. I have extracted a passage from Cook on costs and I wonder if I might hand that up?
LORD JUSTICE ROSE : Yes.
MR TEMMINK : I am sorry, I have just given your usher those pages, I think the hourly rate is, in fact, conceded.
LORD JUSTICE ROSE : Sorry? You think what?
MR TEMMINK : I think the hourly rate----
MISS HUTTON : My Lord, I do not dispute that these are the figures provided by Milton Keynes County Court.
LORD JUSTICE ROSE : Yes.
MR TEMMINK : Dealing with the cost schedule then, in principle, before I need to go to the passage I have just handed up. Firstly, I say the hourly rate should be £140 not £190 as charged. Secondly, I am instructed to dispute that five hours of travelling time and attendance at the hearing for Mr Fairbairn on the last occasion was appropriate. My Lord, may remember that we were in court for less than an hour and it really cannot take four hours to travel from Milton Keynes to London. There is included just above "Attendances at hearing" there is a passage headed "Preparation of appeal documents". I am instructed to argue that the amendment of the skeleton argument amounts to duplication and should not be allowed. There was no new evidence which arrived. There was nothing which was put into that amended skeleton argument which could not have been included in the original and on that basis I ask that you discount the extra time for amending the skeleton argument.
MR JUSTICE STANLEY BURNTON : Is that 30 minutes?
MR TEMMINK : It is. As my Lord noticed, I said I was instructed to argue about those points. Miss Lindsay is paying for these personally, she has no insurance policy and I think the principle is sound.
MR JUSTICE STANLEY BURNTON : If it is excessive; it is excessive.
MR TEMMINK : The most significant part of my argument, my Lords, relates to counsel's fees. It has transpired since this schedule was served, and while I deal with the point of service it was served upon Miss Lindsay's home fax machine whilst she was at work, and whilst Mr Fairbairn knew she was at work because they had had a conversation that very morning. In the course of that conversation neither was it mentioned that the schedule had been served at home, nor was it mentioned that counsel's fees were in fact subject to a conditional fee agreement. Two principles arise out of that series of transactions: firstly, we say, and continue to say, that the schedule was not served more than 24 hours before the hearing time and, secondly, and more importantly, no notice was ever given that counsel's fees, or that any part of these proceedings were subject to judicial review.
MR JUSTICE SILBER : You have to serve notice in advance, do you not, under the rules?
MR TEMMINK : Quite so, and I photocopied, at the back of the passage I handed up, the relevant rule in the Civil Procedure Rules. The appropriate passage is part 44.15. It is at the bottom of page 815. I wonder if my Lords might just read that.
LORD JUSTICE ROSE : Yes. You say that the respondent was not told of the conditional fee arrangement?
MR TEMMINK : No, she was not. The practice direction supplement of that part, I have also photocopied, that is the last two pages and I see----
LORD JUSTICE ROSE : What difference would it have made if she had been?
MR TEMMINK : She may be entitled to take out insurance against the success element of that fee or she may have decided that the risk of continuing was too great. So I say, for those reasons, she has been prejudiced by that uplift.
MR JUSTICE STANLEY BURNTON : Do we know what the uplift was?
MR TEMMINK : Well, there is a dispute about the uplift. Miss Lindsay, I am told, phoned counsel's chambers and determined that the fee was £500 and we can see from the schedule that it is, at the side of the page, £1,500 due to counsel. So it appears that the uplift on that is basis is 200 percent. A letter was sent by fax to my chambers this morning from Mr Fairbairn saying that counsel's fee was £1,000 and the uplift was a further 50 percent. Now, I say two things about counsel's fee in particular. I have already addressed the argument on whether a conditional fee element is appropriate. But whatever is it, I say that £1,000 for that hearing was manifestly excessive, in any event. It was an hour-long hearing. The bundle that we worked from was not great and it was a single issue. On that basis £1,000 was the wrong base fee, in any event.
MR JUSTICE STANLEY BURNTON : Can we have a look at your fee?
MR TEMMINK : You may ask. The schedule -- and I estimated my brief to be a £1,000 but that was not, in fact, what was agreed between my clerk and Miss Lindsay, it was £400 and I say that was a much more appropriate sum, certainly bearing in mind that I had already reviewed the skeleton argument and Miss Lindsay's witness statement and though I had not amended either of them there was a significant amount of work that I did in this case that my learned friend most certainly did not have do to.
My Lords, I have two more small points. The first is that costs were claimed by Mr Fairbairn for attendances on other respondents. I am not aware that there are any other respondents to this appeal, but five letters are claimed at the cost of £95. So there is absolutely no basis whatsoever for Mr Fairbairn claiming that amount from Miss Lindsay. Secondly, we can see that there were nine letters to the court. I am instructed to say that that many letters were unnecessary and perhaps the appellant can explain what those letters to the court really were.
MR JUSTICE STANLEY BURNTON : Do you have a calculation of this?
MR TEMMINK : Sorry?
MR JUSTICE STANLEY BURNTON : Do you have a calculation?
MR TEMMINK : My Lord, I have not because it largely depends on your Lordships' judgment about the rate and I can certainly deal with the application rather quickly once my Lords have made the judgment on a appropriate rate and I would be happy to put in a counter schedule, as it were.
An offer was made to settle costs and I do have details of that. It was put on this basis: based on the hourly rate of £120 an offer being made to settle the costs, one letter to the client and when I say one letter to the client you may say, well, that is ludicrous, save when you remember that Mr Rowe works in the same firm as his instructing solicitor and one questions the need for letters passing between two colleagues in the same firm. 19 letters to the respondent, four letters to court, one telephone call to court, one letter to counsel and two telephone calls to counsel and one hour 45 minutes preparation, two hours travelling, one hour for the hearing, counsel's brief fee of £300, I could not argue that, and the court fee. Now, unfortunately, I do not actually know what that amounted to in the round, but I could add it up and certainly I could work it out if your Lordships give me a moment.
So, in summary, my submission on the costs schedule: hourly rate is not appropriate, conditional fee of brief not recoverable, as not given notice of it, and counsel's brief fee excessive, in any event. The other points which I have already dealt with: other respondents, whoever they are, too many letters to the client, the travel time is excessive and the duplication of the skeleton argument was unnecessary. Unless there is anything further I can assist with?
MR JUSTICE STANLEY BURNTON : And Part 36?
MR TEMMINK : Sorry?
MR JUSTICE STANLEY BURNTON : Part 36 offers?
MR TEMMINK : I conceded already that, in principle, (inaudible) that even on the indemnity basis Miss Lindsay is not bound to pay what is not fair and reasonable.
MR JUSTICE STANLEY BURNTON : It is unclear to me whether this schedule is an indemnity costs schedule or a party cost schedule.
MR TEMMINK : I am -- yes, well, I agree. It is the only schedule we have got and my Lord might remember that I was only handed this schedule when we were actually in court and I have further submissions to make about the next stage and when the schedules were served in a moment when we have dealt with the costs issue.
LORD JUSTICE ROSE : Thank you. Yes, Miss Hutton?
MISS HUTTON : My Lord, if I might deal with that last point first, this schedule is the schedule of costs we are claiming on an indemnity basis. We ask for costs to be assessed in this sum, that would be on the indemnity basis.
My Lords, if I might deal with Mr Temmink's larger points first. First of all, the rate claimed by Mr Fairbairn. In my submission that rate is entirely reasonable. He is a partner in Denton Wilde Sapte in Milton Keynes. If we compare that to the schedule prepared by the respondent. The respondent is an assistant solicitor and she is claiming costs at £150 per hour. Her experience is significantly less than Mr Fairbairn and she is not a partner. So I would ask you to take that into account in assessing whether or not £170 per hour for Mr Fairbairn is reasonable and it is entirely reasonable and that no reduction should be made to that figure.
You are not bound by the costs figure that have been produced by Milton Keynes and I would ask you to allow the costs of £170 pounds per hour.
LORD JUSTICE ROSE : £170? I thought you were claiming for £190.
MISS HUTTON : Sorry, I apologise, my Lord, £190 which, as I say, is entirely reasonable.
MR JUSTICE STANLEY BURNTON : Can I interrupt while we are on Milton Keynes? Is this agreed Milton Keynes figure a part in party figure or is it an indemnity figure? Something I should have asked Mr Temmink. I am unclear.
MR TEMMINK : I am not aware that there is any difference in the county court rates between the two sorts of costs, because we have moved now from the care and conduct and uplift scheme of costs to an all-inclusive rate and on that basis I think there is only one rate cited. So I am afraid I cannot help is the easy answer, but I suspect it is the same either way.
MR JUSTICE STANLEY BURNTON : Thank you.
MISS HUTTON : My Lords, if it is the same either way, I can say you can take it into account and that these costs are being assessed on the indemnity basis by shifting the burden to the party seeking costs to those paying costs to demonstrate why the costs should not be paid.
Moving onto the conditional fee agreement, I have a notice of funding of case for claim which I understand was filed by my instructing solicitors on 12th June 2001. I hoped that would be on the court file.
LORD JUSTICE ROSE : That was the day before the hearing, was it not?
MISS HUTTON : My Lord, yes and I understand the fee agreement which was with counsel was arranged at the last minute and counsel was approached late in the day to do this case. I have a copy of the notice here, if it would be of assistance, but it is a notice in the standard form which gives the necessary information. I am surprised to hear that my learned friend does not have that. My instructions as to whether he should have received it or not -- certainly, my understanding is that it had been filed and served. Whether or not it has been received, I say there is no reason why the costs and CFA should not be allowed simply because that notice was not received. It is clear from the costs schedule that the counsel was acting on a conditional fee and Mr Temmink has had ample opportunity to make submissions as to the reasonableness of the uplift claimed.
MR JUSTICE STANLEY BURNTON : Well, he did not know what the uplift was; he did not know whether the uplift was 200 percent or 50 percent.
MR TEMMINK : My Lord, it is not right to say that the costs schedule showed a conditional fee agreement. The costs schedule we were handed on the morning of the trial was simply marked with an astrix. It is only on today's schedule that the astrix is actually explained.
MR STANLEY BURNTON : I see.
MISS HUTTON : My Lord, for the costs hearing this morning there has been ample opportunity to make the necessary submissions and the respondent cannot say she has been under any prejudice by not knowing about it, which I say is not accepted in the light of the notice of funding which is certainly included in my papers.
Moving on to the uplift claimed under the FA. My Lord, I am instructed that the agreement was that counsel's normal fee for the hearing would be £1,000 based on eight hours preparation and attending the hearing. I submit that that is by no means excessive.
LORD JUSTICE ROSE : He must be a very slow reader if it takes him eight hours to read the papers in this case.
MISS HUTTON : My Lord, I understand reading cases and also reading into the law on disciplinary tribunals which are, perhaps, not matters people come across every day.
LORD JUSTICE ROSE : Perhaps he is an expert in this field, that is why he is entitled to charge £1,000.
MISS HUTTON : My Lord, I have no instructions on that. I cannot tell you whether Mr Fairbairn is an expert. I understand that it required some work.
LORD JUSTICE ROSE : Can we see the notice you have referred to?
MISS HUTTON : My Lord, certainly. My Lord, on the basis that his normal fee was £1,000 the uplift of 50 percent was entirely reasonable. The fact that it was an appeal in itself demonstrates that the outcome was by no means clear, that the appellant faced a certain hurdle in overturning the decision.
MR JUSTICE STANLEY BURNTON : What do you say was the fee before uplift and what was the uplift?
MISS HUTTON : My Lord, the agreement was that - I have a copy of the condition fee agreement with me if it would help your Lordships to see it - the agreement was that £1,000 was the fee that he normally charged for preparation and attending a hearing of this matter. The conditional fee agreement was entered into whereby if the appellant succeeded the fee was moved on by £500, ie uplifted of 50 percent of the normal figure, and if the appellant lost the fee would be £500, so a discount of 50 percent of the normal figure. So in order to make up (inaudible), so there was an uplift of 50 percent from the normal fee. If the appellant lost there would be a comparable discount.
My Lord, moving on to the smaller items mentioned by my learned friend, I would submit that there is no basis on which the respondent can challenge the number of letters written either to the court or the respondent on this matter. The matter was conducted entirely reasonably. The fact that the respondent happens to work in the same offices as Mr Fairbairn is no reason why matters should not be set out clearly in writing, as is normally the case and a matter of good practice. It is particularly important to avoid confusions in those circumstances which could otherwise easily arise.
Moving on to the question of travel time. My Lord, I am instructed that the travel time is that set out in the schedule.
LORD JUSTICE ROSE : Is that travel by horse or something more speedy?
MISS HUTTON : My Lord, I understand by train. It would include travel to two more train stations at either end and travel back again.
LORD JUSTICE ROSE : I think the schedule running time to Milton Keynes is about 35 minutes.
MISS HUTTON : My Lord, I am afraid I do not know. I have no instructions on that point.
My Lords, moving on to the amended skeleton, as my learned friend acknowledged the time challenged on that is relatively small. My Lord, I would submit that if that work had not been amended it would have had to be done first time around and could have been charged for then. So there is no reason why that cost should be disallowed simply because it was incurred in amending the skeleton. My Lords, unless I can help you further on any particular point raised by Mr Temmink?
LORD JUSTICE ROSE : Thank you very much. We will retire for a moment.
(The Court Rose)
LORD JUSTICE ROSE : The respondent will pay the appellant's costs in the sum of £4,000. Thank you.

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