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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 >> Marsden v Guide Dogs for the Blind Association [2004] EWHC 90033 (Costs) (25 March 2004)
URL: http://www.bailii.org/ew/cases/EWHC/Costs/2004/90033.html
Cite as: [2004] EWHC 90033 (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.16 of 2004
In the Matter of Burton Marsden Douglas;
Marsden v Guide Dogs for the Blind Association
25 March 2004
Mr Justice Lloyd (Sitting without Assessors)
Adolfos Henry Simonson died on 29 May 1994, having by his will appointed as executors Mr Piper, a chartered accountant, and Mr Burton, a solicitor. Only Mr Piper proved the will on 9 February 1995, but he instructed Mr Burton to act as solicitor in the administration of the estate. At that time Mr Burton practised in partnership with Caroline Dilkes, under the firm name S J Burton & Co. Although Ms Dilkes appears to have done some of the work she left the firm later that year, and Mr Burton carried on administering the estate under the firm name S J Burton & Co, but effectively as a sole practitioner until 31 August 1999. It appears that during that period he transferred a number of sums out of funds he held on client account on behalf of the estate to his office account on account of costs, but without having rendered to Mr Piper any bill, or other intimation of the amount of the costs claimed. Those transfers, including VAT, totalled over £100,000.
On 1 September 1999 Mr Burton went into partnership with Mr Marsden and Mr Douglas, the appellants, under the firm name Burton Marsden Douglas. He "brought with him" the administration of Mr Simonson’s estate, but some of the charities who were beneficiaries of the will had become concerned at the delays in completing the administration of the estate and were pressing for estate accounts. Mr Burton provided these in January 2000, and they showed payments of fees totalling £102,300.50. A bill for this sum was rendered on 5 March 2001, in the name of Burton Marsden Douglas, to Mr Piper. On 20 June 2001 Mr Burton left the partnership, and, on 19 October 2001, the charities sought detailed assessment of the bill.
This was ordered by the Costs Judge, who further ordered the preliminary issue as to whether, if the bill were reduced on assessment, the appellants should be ordered to repay to Mr Piper any money overpaid in respect of legal services the subject of the bill, and, if so, there was any limit to the amount which might be ordered to be repaid. The Costs Judge decided those preliminary issues in favour of the charities, and the solicitors appealed.
The respondents counsel’s skeleton suggested that the decision below could be upheld on the ground of novation of contract if the Judge were to decide, as he did, that under partnership law Mr Marsden and Mr Douglas were not liable in respect of the bill, even though it had been rendered on their notepaper, and while Mr Burton was a partner with them.
The Judge rejected the argument based on novation, and also a subsidiary argument on estoppel.
The Judge also held that Section 71(3) Solicitors Act 1974 does not permit the court to order repayment of monies overpaid. He accepted counsel for the appellants’ argument that the Section governs first the process of taxation, and secondly the consequences of taxation, but does not of itself create a liability to repay on the part of someone who would not otherwise be subject to that liability.
The Judge accordingly allowed the appeal, and directed that Mr Marsden and Mr Douglas were not liable to repay to Mr Piper any sum which was reduced as a result of the detailed assessment of the bill, the only person liable for such reduction being Mr Burton.