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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 Co Ltd v Liptrott & Forrester (No.2) [2004] EWHC 90035 (Costs) (17 June 2004)
URL: http://www.bailii.org/ew/cases/EWHC/Costs/2004/90035.html
Cite as: [2004] EWHC 90035 (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.18 of 2004
Jemma Trust Co Ltd v Liptrott & Forrester (No.2)
17 June 2004
Mr Justice Hart (Sitting with One Assessor)
Following the remission to the Costs Judge by the Court of Appeal of his assessment of a number of non contentious bills (see [2004] 1 All ER 510) the Costs Judge reconsidered his earlier decision over a period of nine days, during which he read most of the files and heard oral evidence from the fee earners in the defendant firm. At the end of that exercise, in a second Reserved Judgment, he found essentially in favour of the defendants for a higher figure than was contended for by the claimant, but lower than that which he had allowed previously. The claimant appealed that decision on a number of grounds. The first and most important of these was whether, in holding it unnecessary to revisit the hourly rate which he had fixed at the initial hearing, the Costs Judge was precluded from taking "value" into account separately. The Judge, in dismissing the appeal, rejected leading counsel for the appellant’s submission that, as in the present case, hourly rates having been determined by the Costs Judge at the preliminary issue stage, and reflected all the factors other than time and value, it was therefore impermissible to take account of those factors again when assessing the further element of value.
Though critical of the Costs Judge for not giving fuller reasons for the decision which he arrived at, the Judge said this in paragraph 26 of his judgment:
"I accept also that as the judgment in that case [Treasury Solicitor v Regester [1978] 1 WLR 446 at page 454] itself illustrates, it will often be impossible, and sometimes undesirable, for the Costs Judge to spell out the exact process of reasoning which has led to the final figure. That will frequently be the result of a triangulation, based very much on expert "feel" between a variety of relatively unfixed possible positions. In the present case the question is whether the relative absence of any identification of those possible positions renders the judgment unsustainable for want of sufficient reasons."
After analysing the various submissions made on the point the Judge concluded in paragraph 28 of his judgment:
"Despite the criticisms which can be made of the judgment for its lack of reasoning at the crucial point, I have not in the end been persuaded that it would be right to interfere with the judgment on those grounds."
Although the case is, inevitably, very heavily fact dependent, there is one other aspect of the judgment which merits mention in this summary, to be found in paragraph 43 of the judgment:
"43. The criticism that is made is, that there is no distinction to be drawn between the contentious and non contentious work so far as the obligation to keep attendance notes is concerned. As to this, while I agree that the function of attendance notes is precisely the same in both kinds of work so far as assessment is concerned, it seems to me wrong to speak of an "obligation" to keep attendance notes. That language suggests that the failure to keep attendance notes is a duty, breach of which will be visited by the sanction of total or partial disallowance. The true position is that in both kinds of work the burden is on the solicitor not only to show that the time claimed has been spent but that it has been reasonable to spend that time. The keeping of an attendance note is one way, but not the only way, in which this can be demonstrated. The failure to keep such notes exposes the solicitor to the risk of being unable to prove the reasonableness of the time spent -"
Then after quoting with approval a dictum of Ferris J in Mirror Group Newspapers v Maxwell [1998] BCLC 324 pages 333-334, the learned Judge in this case concluded:
"In the present case the Costs Judge was in a position to judge from his extensive examination of the files the nature of the work with which the relevant fee earners were faced, and had the advantage of being able to question them and see them cross examined in relation to certain of the bills. His conclusion that he was satisfied that the time recorded as spent had been reasonably spent does not seem to me to have been the result of any misdirection in point of law, was one which was open to him on the evidence, and is accordingly one with which this court will not interfere."