England and Wales High Court (Senior Courts Costs Office) Decisions

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You are here: BAILII >> Databases >> England and Wales High Court (Senior Courts Costs Office) Decisions >> Anthony v Ellis &; Fairbairn (A Firm) [2000] EWHC 9009 (Costs) (12 May 2000)
URL: http://www.bailii.org/ew/cases/EWHC/Costs/2000/9009.html
Cite as: [2000] 2 Costs LR 277, [2000] EWHC 9009 (Costs)

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This summary of a judgment has been obtained from the Supreme Court Costs Office pages on the HM Courts Service web site. The citation used by BAILII is not an officially approved citation. The full text of the judgment may have an official Neutral Citation issued by the court, and may be available elsewhere on BAILII.

 

 

 No.9 of 2000

John Anthony v Ellis & Fairbairn (A Firm)

12 May 2000

Oliver Popplewell Sitting with Assessors

 

The claimant instructed defendants to act for him in the defence of two writ actions brought against him by two previous firms of solicitors who claimed non-payment of their fees, and to counterclaim against the solicitors for damages for professional negligence. Following counsel’s advice that his counterclaim would fail the defendant submitted a bill to the claimant on 3 September 1998, and on 17 May 1999 the court directed that there should be a detailed assessment of that bill under Section 70 of the Solicitors Act 1974. At the assessment hearing on 23 November 1999 the Costs Judge reduced the charges by a very small amount, and therefore, pursuant to Section 70(9) Solicitors Act 1974, ordered the claimant to pay the costs of the assessment, which he assessed at £2,335.

The first head of appeal was whether it was permissible for the Judge to entertain witness statements challenging the Costs Judge’s finding that the claimant had any liability for the defendant’s bill at all. After the detailed assessment, but before the appeal, the claimant had served a witness statement to support that contention, and immediately before the hearing of the appeal, the defendants had served a witness statement in answer. The Judge accepted the preliminary point advanced on behalf of the defendants that as that point had not been proceeded with in the court below there were no findings of fact made by the Costs Judge which could be the subject of any appeal, and he therefore refused to admit either witness statement, indicating it would be impossible to make any finding of fact on paper without hearing the deponents, and that in a case where the solicitors total bill was only £7,785.60, including disbursements and VAT, it would not be proportionate to send the matter back to the Costs Judge for further argument with cross-examination of deponents.

The second head of appeal concerned an estimate for costs which the defendants had given in the sum of £2,500 plus VAT. The Costs Judge had held that that figure was restricted to profit costs and limited to early settlement, and when such early settlement did not occur the solicitors were justified in departing from their estimate.

In this case the Judge took the opposite view, saying that a bill 2½ times the size of the estimate should not be enforceable where there had been no warning to the claimant that the original estimate of £2,500 would be exceeded, and the Judge followed the case of Wong v Vizards (1997) 2 Costs LR 46, where the Judge had allowed the solicitors a 15% margin over the estimate to the client.

As a result of that decision the solicitors had failed to recover more than 80% of their costs, and the Judge therefore reversed the order below, and awarded the claimant just under £1,500 costs against the defendants, but he refused to award the claimant all his costs of the appeal, reducing the £7,000 claimed to £4,000 to reflect the solicitor’s success on the first head of appeal.