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England and Wales High Court (Senior Courts Costs Office) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Senior Courts Costs Office) Decisions >> Jemma Trust Company Ltd. v Liptrott & Ors [2002] EWHC 9008 (Costs) (12 September 2002)
URL: http://www.bailii.org/ew/cases/EWHC/Costs/2002/9008.html
Cite as: [2002] EWHC 9008 (Costs)
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SUPREME COURT COSTS OFFICE
Cliffords Inn Fetter Lane London EC4A 1DQ |
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B e f o r e :
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| JEMMA TRUST COMPANY LTD |
Claimant |
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| - and - |
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| (1) PETER D'ARCY LIPTROTT JOHN FORRESTER (2) KIPPAX BEAUMONT LEWIS |
Defendants |
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Mr Robins (instructed by Kippax Beaumont Lewis for the Solicitors)
Mr Marriott (instructed by Brabners Chaffe Street for the First Defendant)
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ON PRELIMINARY ISSUES
HTML VERSION OF JUDGMENT
Crown Copyright ©
- Sir Geoffrey Alan Hulton BT died on 20 November 1993. His last will and a codicil thereto had been drafted by Messrs Kippax Beaumont Lewis, who have just been added as Second Defendants, and who will hereafter be referred to as "KBL". The original Defendants were Sir Geoffrey's executers, Peter D'Arcy Liptrott, at all relevant times a partner in Messrs Kippax Beaumont Lewis, but now an associate with them, and John Forrester, who was Sir Geoffrey's land agent.
- The day to day work involved in winding-up this estate was carried out by Mr Marriott, who is a barrister called to the Bar in 1978 and very experienced in this sort of work. He had been an associate (as he was not admitted as a solicitor he could never become a partner), with KBL, but in April 2000 he left KBL and joined Brabners Chaffe Street. It was agreed that this work should, so to speak, follow him to his new firm, and so some of the bills that have been rendered are from the latter firm, but the vast majority are from KBL.
- The Claimant brought proceedings under case no.HC 110509 in the Chancery Division, seeking an account of the administration of the estate, and for the Defendants to account to the Claimant for various assets, and that case was allocated to Master Moncaster. On 17 August 2001 Master Moncaster made an order that the costs of the administration of the estate be assessed by the court. Some six months later, on 26 February this year, Master Moncaster also ordered that the estate pay the costs of the Defendants in relation to the proceedings, such costs to be assessed if not agreed.
- As no agreement has so far proved possible (though I was told during the hearing before me that such agreement might well be possible, certainly in relation to some bills once inspection had taken place), the matter was referred to the SCCO for detailed assessment, and balloted to me.
- The matter reached the SCCO on 7 June 2002, and on 13 June the Claimants Solicitors, The Owen-Kenny Partnership, wrote in suggesting that there should be a directions appointment, and, I fixed such an appointment for 24 June this year. On that occasion Mr Kenny, a partner in the Claimant firm, and Mr Marriott, from Brabners Chaffe Street representing the Defendants, appeared before me. Although no agreed wording was produced, it was clear that both those advocates wanted me to determine some preliminary issues, indicting their view that resolution of such issues might well assist in at least shortening the detailed assessment proceedings, and possibly result in their being compromised as indicated. After a general discussion on that day, it was agreed that I would try as preliminary issues (1) the hourly rates which had been charged by KBL to the executors, and (2) the question of whether a value element should be recoverable in those bills, and, if so, whether it should be the percentage claimed or some lesser percentage.
- As indicated at that stage the case was constituted between Jemma Trust Co Ltd and Messrs Liptrott and Forrester, the former represented by the Owen-Kenny Partnership, and the latter by Brabners Chaffe Street. I gave directions for the preparation of skeleton arguments, and during the course of the preparation of those skeleton arguments it became apparent that KBL might wish to advance arguments which were not necessarily consistent with those of the Defendants, or of Mr Marriott, and I therefore made an order of my own motion that KBL be added as a Defendant, and be permitted to put in their own skeleton argument.
- In the event there were skeleton arguments from the Claimant and from KBL, but not from Brabners Chaffe Street. Both parties took advantage of the provision in my order to be able to reply to their opponent's skeleton, and in addition I was helpfully provided with a paginated bundle a few days in advance of the hearing, which considerably assisted my preparation.
- At the hearing of these preliminary issues, on 2 September, Mr Kenny again represented the Claimants, and Mr Marriott was present on behalf of the First Defendants, but the advocacy for the Defendants was presented by Mr Robins, a respected and experienced costs draftsman. Both advocates presented their arguments well, and, finding the arguments finely balanced, I reserved judgment, and this is the judgment which follows.
- However, before dealing with the preliminary issues I think I should dispose of a point raised fairly late in his submissions by Mr Robins, but nevertheless an important one. He said that the more he had thought about this case, where he had been instructed for the first time on 12 August to give an independent view, the more unhappy he was that these preliminary issues had been ordered to be heard. He reminded me of what Donaldson J (as he then was) said towards the end of his judgment in Property & Reversionary Investment Corporation Ltd v Secretary of State for the Environment, Costs LR (Core Volume) page 54 at page 61:
- He made the point that it would not be possible for me to make such a proper assessment if I had, so to speak, tied my hands by giving advance findings on hourly rates and on the value element point. In effect he was suggesting that I should rescind the order I had made for trial of preliminary issues and start again, or, perhaps more accurately, deal with those points as part of the detailed assessment at a later date.
- Undoubtedly I have the jurisdiction to do that, notwithstanding the waste of costs that this would involve. I have given careful thought to Mr Robins's proposal, but at the end of the day I have come to the conclusion that it is right that I should make decisions on the preliminary issues put before me. This is not just because the parties, as then represented in June this year, asked me to do this, but because I genuinely believe that my findings will assist in the overall resolution of this dispute. Indeed, Mr Kenny said during the course of the argument that he hoped that, as a result of the directions which he was going to ask me to make, it might well prove possible to compromise some of the bills. I believe that this is the case. All parties involved in this case are clearly very wealthy, and I suspect have a vested interest in not spending too much of the substantial estate left by Sir Geoffrey on legal costs. I did not detect the bitterness which sometimes underlies disputes such as this. It would not be right to say that this matter has been conducted as "friendly litigation", but both parties seem to me to be likely to, and willing to, make sensible and pragmatic decisions when the appropriate time comes.
- In his skeleton argument on behalf of the Claimant Mr Kenny helpfully provided me, on page 9 of the agreed bundle, with two tables. In table 1 he said that inspection of KBL's time sheets indicated that the hourly rate for Mr Liptrott was £56, and for Mr Marriott £45. For bills rendered in 1993/94 a composite hourly rate of £85 was charged; for 1995/96 a composite rate of £95; for 1998 a composite rate of £110; for 1999 a composite rate of £150; and for 2000 a composite rate of £150. He contended that KBL's hourly rate should be restricted to the rate shown in the time sheets.
- In a document lodged at the hearing before me dealing with this point, KBL say this on page 2:
- Mr Kenny argued that there was no retainer between the Defendants and KBL. There was no evidence that the residuary beneficiary, Mr Butterfield, had been consulted, and no evidence of "shopping around".
- In response, Mr Robins pointed out that a retainer does not have to be in writing, and there clearly was an implied retainer because Mr Liptrott had acted for Sir Geoffrey for some 20 to 30 years prior to his death, and Mr Forrester had been the land agent for, it is believed, the whole of Sir Geoffrey's lifetime, having succeeded his own father in that capacity. It was also pointed out that there was no necessity in 1993, in terms of compulsory provisions of the Law Society Code, for there to be a written retainer letter, and one would not expect such a letter in this sort of situation, representing as it did an ongoing and very good personal relationship. As to the failure to involve Mr Butterfield, it was said that he was very much involved in the estate anyway, and was well aware of what was going on, and that in any event it is not normal for residuary beneficiaries to be consulted by executors as to their charging rate. I was reminded that, as this is a non-contentious matter, remuneration is governed by paragraph 3 of the Solicitors (Non Contentious Business) Remuneration Order 1994, which reads as follows:
- I pointed out to the advocates that that wording has significant additions to that which was considered by Mr Justice Walton in the case of Maltby v D J Freeman, to which I will return later in this judgment. On page 915 of the report in the All England Law Reports for 1978 His Lordship quotes from the Non-Contentious Probate Rules which were then in force, being the Rules of the Supreme Court (Non-Contentious Probate Costs) 1956 and which start as follows:
- Thus, it will be noted that the words "reasonable to both solicitor and entitled person" which appear in the 1994 Remuneration Order did not appear in 1956, or at any event there is no specific reference to the entitlement of the entitled person. I asked the parties why they thought this change had been made, and they both agreed that it was probably to reflect the fact that under Section 71 of the Solicitors Act 1974, which was not of course in force in 1956, a third party, such as the nephew Mr Butterfield in this case, were for the first time given the right to challenge bills, and this alteration in the Remuneration Order simply reflected that additional right, which it was suggested was always implied. I think that is probably right, and for that reason the authority of the Maltby case is not lost because of the significant change in the wording of the relevant Remuneration Order.
- On page 11 of the agreed bundle, at Table 3, Mr Kenny sets out the rates which he would be prepared to concede for Mr Liptrott and Mr Marriott.
- His argument is that these represent a proper hourly rate for work done by Mr Liptrott and Mr Marriott in the years in question. There is a differential between them, because Mr Marriott is not treated as a category 1 fee earner. It is true that he is not, and cannot be, a partner in any firm of solicitors because he is called to the Bar, and not admitted as a solicitor, but it is quite apparent that his experience in this specialised field is very great, and in my judgment he is entitled to be treated as a grade 1 fee earner, and there should be no differential therefore between the hourly rate to be charged for work done by Mr Liptrott and by him.
- In paragraphs 42 to 46 of the Defendant's skeleton the justification for the rates charged is put forward very clearly. I consider that the rates proposed by Mr Robins on behalf of KBL, which are indeed the rates for which the work has been charged as hourly rates, are indeed the right ones for the reasons which he advanced in those paragraphs of his skeleton, and orally amplified at the hearing before me. Those paragraphs, incorporating the rates claimed are:
- If, and in so far as it may be, necessary I would rely on the case of Jones v Secretary of State for Wales [1997] 1 Costs LR 34 to justify any increase above the basic rates which the District Judges in Bolton agreed. Whilst it may not be right to say that KBL is a niche practice of itself, it is clear that Mr Marriott is, as already indicated, a highly experienced and specialist practitioner, who brought to bear with him all that expertise, in what was probably a somewhat unusually large case for solicitors in the Bolton area.
- The question here is whether KBL are entitled to charge a percentage of the value of the estate in addition to the hourly rate, and, if they are, whether the percentages which they have charged are the appropriate ones. The charges made represent an "additional" £227,000.00 over and above the hourly rate charges.
- Whilst the practice in respect of contentious costs has evolved steadily over the years in the form of reported cases, and has if anything accelerated substantially since the introduction of CPR on 26 April 1999, the same cannot be said in respect of non- contentious costs, and the leading authorities remain the four cases decided in the 1970's, namely:
- Mr Kenny said that those cases should not be discarded simply because they were, in costs terms, old cases, but because they reflected a totally different approach to costs from that which is adopted today. He contended that in the 1970's very few, if any, firms had any form of computerised time costing system, and therefore it was natural that hourly rates, which would be by modern standards considered low, should be supplemented, in appropriate cases, by uplifts to represent value. He reminded me that in Property & Reversionary Investment Corporation Ltd v Secretary of State for the Environment, as reported in Costs Law Reports, on page 57, Mr Justice Donaldson said:
- This was a case concerning the proper fee to be charged for the compulsory purchase of land by the Secretary of State for the Environment to allow extensions to the Houses of Parliament in Parliament Street and Bridge Street, Westminster, the agreed compensation under the Compulsory Purchase Act 1965 having been fixed at £2¼ million. Again, at the beginning of his judgment Mr Justice Donaldson said this:
- Mr Kenny advanced the bold argument before me that the addition of a value element reflected in all the cases reported in the 1970's was no longer appropriate, because time costing had become much more sophisticated, and the hourly rates which were claimed reflected a profit element for doing the work, so that in effect if a value were to be added the solicitors would be being paid twice for the same work. He recognised that this was indeed a bold argument to advance, bearing in mind the distinguished judges who had decided the cases and some of the advocates whose name appear as representing the parties, notably Harry Woolf, as he then was, and John Balcombe QC, who have of course become respectively Lord Woolf LCJ and Balcombe LJ.
- His argument is well encapsulated in paragraph 33 of the Claimant's skeleton:
- I have adverted earlier in this judgment to certain allegations made, and another point that was put to me was that there was an excessive use of counsel, with the fee sheets indicating that counsel had been involved on no less than 52 occasions, and that Mr Robert Venables QC had written a number of opinions, one of which ran to no less than 197 pages. This, it was said, detracted both from the appropriate hourly rate, and also from the value aspect of the case.
- Certainly in inter partes taxations, as they were known prior to the introduction of CPR, in ascertaining the "B factor" one of the arguments regularly addressed to Taxing Masters (as we then were), was that the uplift claimed by the solicitors should be reduced, perhaps substantially, because of the constant involvement of counsel, an argument which frequently succeeded in part or in whole.
- However I do not think that the same considerations apply to an estate of this sort, where, even from the limited information supplied to me at this stage, it is clear that the estate was one with some complexities involved, which justified, and indeed required, reference to experienced specialist counsel, and that ought not, of itself, to reduce the hourly rate for the solicitors, but it does not in my view answer the question of whether or not an addition should be allowed for value.
- Of the four cases referred to the closest to this situation is the case of Maltby & Anor v D J Freeman & Co, because it involved an estate worth, in mid 1975, some £1¾ million, a figure which is not entirely incomparable with the value of this estate, being in mind the inflation and reduction in the value of money that has occurred in the intervening 25 years.
- It is interesting to note that that dispute started as a reference to the Solicitors Remuneration Certification Section of the Law Society, which certified that the bill which the solicitor sought to charge of £11,175, should be reduced to £8,500. On page 54 of the agreed bundle, page 915 of the All England Law Reports of that case, the Judge said:
- The Learned Judge in that case, Mr Justice Walton, then went on to give valuable guidance (for which he acknowledges considerable assistance from his assessors). On page 917 of the report, just before letter d, his Lordship says this:
- He then continues on page 918, just above letter d:
- Mr Kenny makes the further point that there is no longer a recognised scale recommended by the Law Society. I was of course shown a document headed "Practice Advice Service Non-Contentious Costs" which does suggest on page 4 that value still applies. It is however interesting, and I think significant, that on page 4 of that document the following paragraphs appear:
- I have come, after much thought, to the conclusion that now that hourly rates are calculated, invariably on the basis of sophisticated time recording material, that it is anachronistic and wrong to include an additional element in respect of value. I recognise that this is a bold decision for a judge to make at this judicial level, but it does seem to me to be the right one. I have to say that I have been influenced to some extent by the fact that the solicitors decided from the very first bills that they rendered in 1994 that there would be a value element. However I think that Mr Kenny's argument that a solicitor in this sort of situation should either charge on an hourly rate, or on the basis of value, but not both, should prevail. By charging a percentage of the estate, and in addition all the hours that have been claimed, it seems to me that solicitors would be overpaid for what I accept was not an easy estate to wind up.
- If it were to be held that I am wrong in this decision then I think it would be helpful if I were to decide whether the lower percentages suggested for the parts of the estate which were worth more than the maximum figure quoted in Maltby should be adopted, and it seems to be that there is a logic in the figures put to me by Mr Kenny which appeals to me, and I therefore would hold that those lower percentages should apply, should it be held on appeal that I was wrong totally to exclude value in my decision. These figures are:
- together with 1/24% on the excess over £9,113,894.42
- THE WAY AHEAD
- The parties very sensibly agreed that the resolution of these preliminary issues should not necessarily hold up the progress of the rest of the detailed assessment, and accordingly a timetable has been agreed for the Claimants' representatives to inspect the Defendant's files, and then to put in points of dispute, with the right to the Claimant to file points of reply. An express undertaking has been given on behalf of the Claimants by Mr Kenny that any information of a confidential nature which may be disclosed as a result of their inspection can only be used in connection with these detailed assessment proceedings, and not otherwise, which clearly is an implied term, but it is as well for it to be spelt out in this case. Similarly, in the event of any problems over redaction of documents or allegations of negligence, there is liberty to restore the matter to me for argument.
- The parties agreed that the costs of the preliminary issue should be costs in the assessment, and it was also agreed that the time for seeking permission to appeal should be extended until 21 days from the date when this judgment is sent out to the parties. Although there is an argument that only the party seeking permission to appeal should make representations, I have directed that any such application should be served on the other parties, who should have the opportunity to put their point of view before I make a decision on whether to grant permission to appeal on the papers without a further oral hearing.
Master Rogers :
BACKGROUND
[In paragraphs 2 to 10 of the judgment Master Rogers describes the value of the estate (in excess of £9,000,000), the assets comprised within it (including two large parcels of land and various substantial shareholdings in Canada and elsewhere) and the provisions of the Deceased's will and a Deed of Variation thereof.]
THE PROCEEDINGS IN THE CHANCERY DIVISION
THE DETAILED ASSESSMENT PROCEEDINGS
THE HEARING OF THE PRELIMINARY ISSUES
"With these factors well in mind, it is necessary to assess a sum which is fair and reasonable. Each case will always have to be considered on its merits and be subject ultimately to the discretion of the taxing master."
THE FIRST PRELIMINARY ISSUE: HOURLY RATES
"The print outs provided for the Claimant were provided as evidence of times spent not charging rate applied. They were specifically entitled "time ledger". In the debited column there is a figure inserted. This is inserted for management purposes only and does not form the basis of a charging rate to the client. The computer has to have a figure in the column otherwise it will not function and will therefore not produce a time record. The figure inserted is purely notional. A cursory glance at the timed print out shows that the figure of £56 had been inserted from 1993 until 2000. There is no mention of a figure of £45 for the relevant period. It can also be seen from the time print out that these were set up to deal with legal aid matters and for this reason the figures were purely notional. The evidence of the charging rates of KBL is attached to the Defendant's skeleton arguments and referred to at paragraph 46 therein."
"3. Solicitors' Costs
A solicitor's costs shall be such sum as may be fair and reasonable to both solicitor and entitled person, having regard to all the circumstances of the case and in particular to:-
(a) The complexity of the matter or the difficulty or novelty of the questions raised;
(b) the skill, labour, specialised knowledge and responsibility involved;
(c) the time spent on the business;
(d) the number and importance of the documents prepared or perused; without regard to length;
(e) the place where and the circumstances in which the business or any part thereof is transacted;
(f) the amount or value of any money or property involved;
(g) whether any land involved is registered land;
a. the importance of the matter to the client; and
b. the approval (express or implied) of the entitled person or the express approval of the testator to:
(i) the solicitor undertaking or any part of the work giving rise to the costs or
(ii) the amount of the costs."
"For work done in respect of business to which these rules apply a solicitor shall be entitled to charge and be paid such sum as may be fair and reasonable having regard to all the circumstances of the case ..."
| Years | Mr Liptrott | Mr Marriott |
| 1993/94 | £80.00 | £60.00 |
| 1995/96 | £90.00 | £70.00 |
| 1997/98 | £100.00 | £75.00 |
| 1999 | £110.00 | £80.00 |
| 2000 | £120.00 | £90.00 |
| 2001 | £130.00 | £95.00 |
| 2002 | £140.00 | £100.00 |
"42. The case law that has developed on the question of hourly rates is:Leopold Lazarus;
Stubbs v RNOH;
Finley v Glaxo;
Johnson v Reed Corrugated;
Re A Company and
KPMG Peat Marwick
Year Hourly Rate 1994 £85 1995/96 £85/95 1998 £110 1999 £150 2000 + £150 These decisions are as between party and party on the standard basis, these have tended to bear little or no relation to the actual expense rate of the firm concerned. As between solicitor and client in both contentious and non-contentious costs the taxing officer starts with the retainer. If this is silent as to the hourly expense rate, the taxing officer must consider the actual cost to the firm of doing the work and whether that cost is reasonable in the context of the nature of the work. In support of this principle, there is set out below at paragraphs 44 – 46 inclusive evidence of contentious rates in the local courts and solicitor and own client bills of Kippax Beaumont Lewis.
43. The District Judges in conjunction with the Bolton incorporated Law Society have undertaken a review of Solicitors' overheads annually since 1985 in accordance with The Expense of Time. The President and Secretary of the Bolton Law Society, together with Mr Robbins (Law Costs Draftsman) have met with the District Judges and a figure agreed upon which has formed the Broad Average Direct Cost since 1986. This was a figure that was supported by the District Judges on all inter partes taxations. This practice was encouraged many years later in the case of Johnson v Reed Corrugated ante. It should be stressed that these rates are for contentious inter partes business only.
44. The figures referred to in the preceding paragraph for the years referable to the bills now before the Court were as follows:
Year Hourly Rate 1994 £66 1995 £72 1996 £78 1998 £80
45. These were rates for Partners and represented a base rate before care and conduct, the starting point of which was 50%. Therefore the charging rates for contentious "run of the mill" inter partes bills with a 50% uplift was as follows:
Year Hourly Rate 1994 £99 1995 £108 1996 £117 1998 £120 46. In January 1999, the District Judges decided to embrace the spirit of CPR and allowed a charging rate of £120 per hr for Partners. Upon the introduction of CPR the District Judges decided that they did not wish to continue the expense of time exercise and as from April 1999 the Grade 1 rate for Summary Assessments was set at £135 per hr. This was increased to £150 from November 1999 and to £155 per hr from June 2000.
Below is a table of comparison.
Year Bolton County Court
Inter Partes rates based on the broad direct cost plus 50% care and conductKippax Beaumont Lewis charging rates 1994 £99 £85 1995 £108 £85/95 1996 £117 £95 1998 £120 £110 1999 £120/£135/£150 £150 2000 £150/£155 £150 In accordance with The Law Society's Notes for Guidance in Non-Contentious Costs, the service increment could appropriately be in the range of 25 to 35% in the average case, but in all the circumstances of a particular case (and having due regard to relevant factors other than time and value) a higher or lower percentage may be appropriate. There is attached to this document bills raised by Kippax Beaumont Lewis against their clients on a variety of matters from the years 1995 to 2002 inclusive. An examination of these bills, which vary from contentious to non-contentious work and relate to differing categories of work, reveal charging rates which are comparable with those raised by Kippax Beaumont Lewis in relation to the administration of the Estate, etc."
THE SECOND PRELIMINARY POINT: VALUE
(1) Treasury Solicitor v Regester, Costs LR (Core Volume) 42;
(2) Property Reversionary Investment Corporation Ltd v Secretary of State for the Environment, Costs LR (Core Volume) 54;
(3) Leopold Lazarus v Secretary of State for Trade & Industry, Costs LR (Core Volume) 62;
(4) Maltby v D J Freeman & Co [1978] 1 WLR 431; Costs LR (Core Volume) 64.
"Taking all these factors into consideration, counsel for the Secretary of State submitted that the basic figure in the calculation should be £450 (30 hours at £15 per hour) which could be multiplied by three to reflect the element of responsibility and the importance of the transaction, giving a final figure of £1,350. This might be rounded up to £1,500."
"The difference between the contentions of the parties was startling. The vendors' solicitors put forward a detailed bill of costs on the basis of which they claimed £12,391.50 made up of £11,250 professional charges and £15 disbursements with value added tax ("VAT") in each case at the rate of 10%. The Secretary of State argued for a figure of about £1,500 plus VAT. The learned master originally taxed the costs at £7,000, but on hearing objections from both parties reduced this to £4,625, plus VAT in each case, and £15 plus VAT for disbursements ..."
"33. It is the Claimants submission that a value element should no longer be charged, in accordance with modern time recording practices If a value element is to be charged at all, it should only be charged in wholly exceptional cases or where agreement has been reached with the paying party that that will be the case. Although the estate was large and complex, it was not sufficiently exceptional to justify a value element. Further, some of the complication and complexity arises from the way in which the will was drafted and the way in which Kippax Beaumont Lewis administered the estate."
"Neither of the plaintiffs was satisfied with this outcome, and they accordingly proceeded to taxation. I need not detail the various procedural steps which occurred, but the master first of all allowed the bill in full in the sum of £11,175; but, on objections to taxation being made, reduced it by the sum of £675 to £10,500. The plaintiffs still not being satisfied, they have applied for a review of this taxation, which is now before me. Pursuant to a direction of Oliver J, I have sat with assessors (Master Clews and Mr M D T Loup, senior partner in Boodle Hatfield & Co) from whose experience and advice I have derived the greatest possible assistance, although I should perhaps make it clear that the decision which I have reached is strictly my own, and that neither of them would have reached precisely the same figure."
"In general, however, when one comes to translate value into terms of the legal bill, the approach involves two ingrained habits of legal thought. There is nothing strictly logical about either, but they are so ingrained that all approaches have to take them into consideration. The first is that the correct method of charging is by means of a method of percentages, and the second is that the percentage is not a flat rate applied throughout the scale, but declines on a regressive scale as the value of the matters involved increases. In the Property and Reversionary Corpn case a strenuous effort was made to persuade the court, in the light of the fact that the 1972 order (very similar in terms to the rules in the present case) did not prescribe any bands or percentages, that a flat rate ought to be taken over the whole. This was rejected by Donaldson J in accordance with the general feeling of the profession.I am therefore left the twin problems of where the bands lie and what the percentages should be. In the Property and Reversionary Corpn case, Donaldson J indicated that the divisions between the higher bands, when one is dealing with property approaching £2 million as a minimum in value, should fall at £½ million, £1 million, £2 million, £5 million and £10 million. Although the value of money has changed considerably even since 1975, I would not quarrel with these divisions in any way. I do not, however, take it that the learned judge intended that the first band should be a simple band up to £¼ million at a low figure. I must, I think, "dovetail" into the charges for estates made up to £¼ million, and in this regard I refer, by way of illustration rather than strict guidance (since the figures have since been withdrawn) to the suggested Charges for Obtaining Grants and Administration set out in the Law Society's Gazette.
I therefore think that in the case of an estate of the size of the present one, compounded of the large number of separate elements of which the present estate is compounded, the first band (to £¼ million) would be at 1½ per cent; and the next band (£1 million to £2 million) at 1/6th per cent. I must emphasise that these bands cannot be made to apply, and are certainly not intended to apply, to any other classes of work carried on by solicitors: they have no relevance whatsoever to ordinary straightforward conveyancing, for example, where there is only one asset to deal with at a time. They are intended to be confined solely to the work involved with a large number of assets. And they are solely confined to an estate of the present size: in the case of a smaller estate, the first rate would be too low."
"I think that Messrs Kitchens have rightly not sought to charge any sums under heads (3), number and importance of the documents perused or (7), importance or the matter to the client. In the circumstances of this case head (3) is subsumed in the time expended, and though of course the matter was of great importance to the clients, it is not of any importance other than might be deduced from its general nature and size. A sum of £300 has been charged under head (4), the place where and the circumstances in which the business or any part thereof was transacted but I see no justification for any such charge The solicitors were not required to attend at any extraordinary place, or to act with any extraordinary degree of urgency, or any other matter of this nature.Sums have also been charged under heads (1), complexity and (2), skill, labour, specialised knowledge and responsibility. I think that charges under both heads are justified, although it appears to me that the method of ascertaining such sums adopted by Messrs Kitchens, namely the taking of a percentage of head (6) , is unsatisfactory. The two items together are charged at £5,100, and I am quite clear that this is too much. It is extremely difficult to say just how much ought to be charged under these two heads, but, having had my attention called to the correspondence, and to the documentation involved not forgetting that as regards one or two matters the solicitors might, perhaps, have displayed even more skill than they did with advantage, a sum of a little more than half of the sum allowed would be justified.
Accordingly, at the end of the day I have reached the conclusion that the sum which ought to be charged is the sum of £8,500. This is, of course, in round figures: it is not possible to pretend to any greater accuracy. It will be seen that my figure agrees with that of the Law Society's certificate. I have no means of knowing precisely, or at all, how the Society's panel arrived at that figure, but it is at any rate satisfactory to me to find that the analysis which I have made above produces approximately the same result.
I therefore fix the amount of the bill in the sum of £8,500."
"Practitioners are referred to the client care and costs guidance attached to this booklet and particularly to the guidance relating to charging rates. The new Civil Costs Rules encourage a move away from the A plus B (hourly rate plus care and conduct) method of billing in favour of a single charging rate inclusive of care and conduct.Article 3 above [this is a reference to the Non Contentious Remuneration Order of 1994] contains those factors that needs to be considered when calculating the care and conduct element of the charging rate."
MY CONCLUSION ON VALUE
| Value | Percentage | Amount |
| Up to £250,000 | 1½% | £250.00 |
| £250,000 to £1,000,000 | ½% | £3,750.00 |
| £1,000,000 to £2,000,000 | 1/6% | £1,660.00 |
| £2,000,000 to £5,000,000 | 1/12% | £2,500.00 |
| £15,000,000 to £9,113,894.42 | 1/24% | £1,714.2 |
| Total | £9,874.12 |
PR\16\Jemma v Liptrott