GLOBAL ENERGY HORIZONS CORPORATION V THE WINROS PARTNERSHIP [STATUTE BILL V NON STATUTE BILL] | FULL CASE DETAILS / THE DECISION
The interim (statute) Bill/scope issue: GEHC’s position
52. Invoice number 39618 [G18] rendered to GEHC in December 2012 in relation to fees that RS allegedly represented were now due following the liability Judgment, totalling £3,269,131.54, is in issue, on the question of whether that invoice is an interim statute Bill and thus outside the scope of the Section 70 proceedings for Detailed Assessment, or is an interim, non-statute Bill and therefore within the scope. In effect it is a question of whether or not Detailed Assessment is time-barred under the Solicitors Act 1974 at Section 70 (4).
53.
GEHC states that CFA2 (the retainer under which this invoice was raised) made no provision for rendering an interim statute Bill, or for seeking payments on account. Bearing in mind that CFA2 was a CFA with a £1 million Advance Fee, that is not surprising. GEHC go on to detail the information on the face of the invoice, which is relevant to whether it is an interim statute Bill or merely a request for payment on account.
54. In this regard, per GEHC, it is relevant that the invoice does not carry a date range (work done from x date to y date); it contains no details of the costs and the accompanying schedule simply refers to “Total time recorded to 21.12.12” adding that credit has been given for a series of invoices. Two of those invoices relate to work done prior to 30 September 2009; that is the effective commencement date of CFA2 under a term rendering CFA2 retrospective. RS subsequently conceded there had been an over-charge in the sum of £65,988 (for work done prior to CFA2’s effective date) but have not returned that sum.
55. A statute bill must contain sufficient information to inform the client as to the basis on which it was prepared and enable the court to check its propriety; see Cobbett v King [1908] 2 KB 420. GEHC cite Ward LJ in Ralph Hume Garry v Gwillim [2002] EWCA Civ 1500 stating that at paragraph 70 Ward LJ held:
“70. This review of the legislation and the case law leads me to conclude that the burden on the client under section 69(2) to establish that a bill for a gross sum in contentious business will not be a bill “bona fide complying with the Act” is satisfied if the client shows:—
i) that there is no sufficient narrative in the bill to identify what it is he is being charged for, and
ii) that he does not have sufficient knowledge from other documents in his possession or from what he has been told reasonably to take advice whether or not to apply for that bill to be taxed.
The sufficiency of the narrative and the sufficiency of his knowledge will vary from case to case, and the more he knows, the less the bill may need to spell it out for him. The interests of justice require that the balance be struck between protection of the client’s right to seek taxation and of the solicitor’s right to recover not being defeated by opportunistic resort to technicality.”
56. Per GEHC, in addition to the information contained within the invoice as to what it covered, RS were obliged also to explain the effect of the invoice, and specifically that certain time limits would operate so that if it was not challenged within a fairly short space of time, it could not be challenged under the Solicitors Act at all. Case law such as Thomas Watts and Co v Smith [1998] EWCA Civ 468 and Turner and Co v O Palomo SA [2000] 1 WLR 37 would, as I understand it, not have assisted GEHC in the present case because the sums allegedly due and owing, were paid several years ago (and, per RS from paragraph 76 below, because GEHC is the Claimant, not the Defendant, in these proceedings). Hence an investigation of RS’s invoice by way of assessing RS’s damages [Ahmud and Co Solicitors v MacPherson [2015] EWHC 2440] for non-payment thereof, would not apply in the present case.
57. GEHC cite Fulford J, in Adams v Al Malik [2003] EWHC 3232 (QB):
“….the party must know what rights are being negotiated and dispensed with in the sense that the solicitor must make it plain to the client that the purpose of sending the bill at that time is that it is to be treated as a complete self-contained bill of costs to date.”
58. Per GEHC, RS should have explained that this was an interim statute Bill and advised GEHC of its right to have it assessed by the court. An explanation was provided in the original, 2009 terms and conditions, but was not repeated or explained at the time the invoice was rendered, some three and a half years later.
59. If RS sought to rely on the doctrine of “Natural break” to justify their position that this was an interim statute Bill and they were entitled to render such a Bill, GEHC would argue that a natural break is not consistent with a case being run under a CFA, and that the specific terms of CFA2 and in particular, the calculation of the success fee, show that there would be no payment of fees until the conclusion of the litigation and receipt of funds from Mr Gray. GEHC cited CFA2 (under the calculation of “Success fee”) [H16] which provides:
“The success fee percentage set out in the agreement reflects the following:
………….
(c) our assessment of the risks of failing to recover monetary return and the further postponement of payment of these costs
(d) the fact that if you win, we will not be paid our basic charges until the end of the claim;”
60. The provisions of CFA2, “What is covered by this agreement” [H14] include:
“The claim brought by you against Robert Gray and others…. Any proceedings you take to enforce a Judgment, Order or agreement. Negotiations about and/or a court assessment of the costs of this claim.”
61. The latter provision also indicates that the CFA did not end until the final conclusion of the proceedings, including Detailed Assessment proceedings. For this reason alone, say GEHC, the 21 December 2012 invoice was never, and could never have been, anything other than an interim non-statute Bill and as such, all costs incurred under CFA2/under that invoice, are clearly within scope.
62. While RS may say that the parties treated this as an interim statute Bill and that GEHC did not object to its delivery, even if this were the position (per GEHC) it would result only from RS wrongly advising GEHC that it was then entitled to raise a Bill because the proceedings subject to CFA2 had concluded in a win. Given that it proceeded on this erroneous advice, GEHC cannot have given any informed consent to what GEHC characterise as a variation of RS’s retainer so as to allow it to submit an interim statute bill at this time.
RS’s Position on Scope:
63. RS assert that there is a fundamental incoherence to GEHC’s position [in] respect of this invoice as the claim form seeks Detailed Assessment of Bill 39618, but then goes on to assert that it is not an interim statute Bill. If so (per RS) it is incapable of assessment and, on GEHC’s own case, the Bill is outside the scope of these Detailed Assessment proceedings, and the scope application should be decided against GEHC. In asserting that the Bill is an interim statute Bill, RS rely upon the definition of success in CFA2 {H/H20}:
You achieve a settlement or any other benefit arising out of the Claim, or if you do not achieve a settlement and you go on to issue proceedings, the Court orders in your favour and orders your opponent to pay you costs.
64. Thus (per RS) success could be achieved if GEHC achieved a settlement or any other benefit or if the Court ordered in GEHC’s favour and ordered Gray to pay costs. At the point that Vos J’s Judgment was handed down (21 December 2012) the first of the two alternative definitions of success had in fact been achieved. GEHC had achieved a benefit arising out of the claim, namely determination by Vos J that Mr Gray had acted in breach of his fiduciary duty to GEHC, and that GEHC were entitled to an account, an enquiry and the transfer of assets found to be held on constructive trust. Per RS, it cannot sensibly be said that this was not a benefit to GEHC even if at that time (and to date) no damages have been recovered under Vos J’s Judgment.
65. Further, per RS, the Order of Vos J at {J1/J211-4} sets out the substantive order (paras 1 to 4), and the costs order (para 5). These make out the second definition of success. It cannot plausibly be argued that these provisions do not amount to the Court “ordering in the Claimant’s favour” and ordering Gray to pay costs. There was some suggestion in cross-examination that this Order was rather akin to an interlocutory success but (per RS) that position is contradicted by comparing these paragraphs with the relief sought in the proceedings: see the Re-Amended Particulars of Claim at {J1/J104 to J106}. Rather than mere interlocutory success, RS say Vos J was ordering wholesale in GEHC’s favour on every item of relief sought (including where no damages were sought).
66. As to the suggestion in cross-examination that, because the relevant CFA had originally been made at a point when no split Trial had been ordered, success within the terms of the CFA could not be achieved until both liability and quantum had been determined, RS assert that this argument was premised on a false description of the claim by characterising it as one which would only succeed if damages were secured. Per RS, no quantified damages were sought, but only an account as to whether Mr Gray had made any benefits. What happened in the Gray Proceedings is what happens on a very regular basis in (e.g.) Clinical Negligence cases: parties habitually enter into CFAs on not dissimilar terms to these, and where a split Trial is later ordered success is achieved if liability is decided in the Claimant’s favour.
67. If, contrary to the analysis above, the Court were to hold that neither the Judgment nor the Order of Vos J entitled RS to render a bill, that Judgment nonetheless represented the end of the liability phase of the litigation, giving a natural break in the proceedings, entitling RS to deliver a bill (Re Romer and Haslam [1989] 2 QB 286).
68. In the further alternative, per RS, GEHC has by its conduct in accepting delivery of the Bill, paying the Bill and relying upon its liability for that Bill in the party and party assessment against Mr Gray, accepted it as a statute Bill under the principle in Davidsons v Jones Fenleigh [1997] Costs L.R. (Core Vol.) 70.
69. If none of the above arguments were to be accepted then, per RS, GEHC is in any event barred by estoppel by convention from denying the right to render a statute bill: GEHC and RS having proceeded on the shared basis that RS was entitled to deliver a statute Bill. In that Bill, rendered on the basis of that shared understanding, RS credited GEHC with the balance of the Advance Fee paid under CFA2 (in so far as it had not been spent on disbursements) in the sum of £706,780.12: see the calculation attached to the Bill at [G19]. It would be unconscionable for GEHC, having taken the benefit of that repayment, to which it would not have been entitled if a statute Bill had not been rendered, to be allowed now to deny that right, making out an estoppel by convention.
70. It would further both be contrary to the doctrine of approbation and reprobation and an abuse of process in the light of the decisions of Master Leonard on the Detailed Assessment between GEHC and Mr Gray, given that GEHC had claimed a success fee in that Detailed Assessment, and Mr Gray had disputed it in the Points of Dispute: see General Point 3 at {J493}:
Furthermore, according to the terms of the two CFAs as summarised on page 8 of the Bill of Costs, the success fees were set, inter alia, on the basis of “the fact that if you win we will not be paid our basic charges until the end of the claim”. This anticipates that the success fee would not be recoverable until the end of the proceedings as a whole.….It is the Defendant’s case that the success fee is not recoverable until the end of the proceedings/claim, which will be when quantum has finally been determined. Accordingly, success fees are not to be determined now
71. Contrary to that argument made by Mr Gray, Master Leonard did assess success fees, and thereby rejected the argument raised on behalf of Mr Gray. It was put to ABC in cross-examination that the transcript of Master Leonard’s Judgment at {J575} did not deal with the point, but per RS this was a piece of misdirection and the Judgment that was shown to ABC to make this point was on an application to adjourn, not on the assessment itself: see the Order at {J574} and paragraphs 20 and 22 at {J580-1}. The issue of recoverability of the success fee had to be dealt with, not as part of that adjournment application but as part of the Detailed Assessment proper. On the Detailed Assessment ‘proper’, the success fee was indeed allowed although reductions were made.
72. As to the alleged defects in the Bill, even in closing submissions RS assert that GEHC cannot rely upon the absence of a narrative, as the evidence establishes that a time report was delivered with the Bill and that it was given to GEHC again at a meeting in January 2013: ABC, WS2 at paras 12 and 13 {C/C47-8} refers and further Mr Monych is said to have accepted in evidence that, although he had not recalled being given the printouts, this had in fact occurred and that his witness statement was wrong in this regard: {K5/pp 149-150}.
73. GEHC relies on the existence of errors, many of which are disputed, but even if and insofar as it is found that errors were made, RS assert no basis exists for contending that errors prevent interim Bills from being statute Bills, and that any such contention would be inconsistent with practice. Per RS the line of authority which establishes that the presence of errors may amount to special circumstances for the purposes of section 70(3), could not arise if the presence of errors prevented Bills from being statute Bills.
74. As to GEHC seeking an order that the Court reopens accounts and enquires into their correctness, per RS the grounds for such an order are obscure. The client is the Claimant, not the Defendant, so the Turner v O Palomo principle does not apply. Certainly, as stated above, the fact that these costs have long been paid, seems to me to put them outside both that case and Thomas Watts and Co v Smith besides, and I certainly agree with RS’s view that the principle does not apply.
75. Per RS, if there is any jurisdictional basis, the Court should be very slow to exercise it in favour of a commercial client with the benefit of advice from Canadian lawyers, particularly in circumstances where the order sought would amount to an undermining of the express statutory time limit in section 70(4) (and where GEHC has issued separate Part 7 proceedings which it says is for matters held outside the scope of the present assessment proceedings). I deal with the relevance of Mr Reed’s availability to advise on nice technical CFA points below (from paragraph 169). In short, I do not accept that his involvement has any impact whatsoever on this point. I am not aware that he practices law in England and Wales much less that he is alleged to have expertise in CFAs and I do not place any onus upon GEHC to seek his advice upon retainer documents produced by RS.
Court’s Decision on Scope
76. I deal very briefly with the above legal points, for the simple reason that the scope issue has in my view turned upon which of the two parties’ accounts of events I should accept. As such there is no need to go into great detail on the rest.
77. If GEHC have fallen into error by framing their case in terms of the invoice from December 2012 being within the scope of the Section 70 proceedings, no doubt that will sound in the costs of these proceedings. However, the real battle line between the parties on this invoice, was very clearly as to whether the costs billed in that invoice, are outside the scope of Detailed Assessment. If the invoice had been ruled as outside scope on the grounds upon which this issue was principally argued, namely elapse of the relevant time limit for challenging an interim statute Bill under Section 70, then the substantial costs contained within it, could not have been challenged by GEHC. As such, if as a result of these proceedings, GEHC have the right to have those costs assessed, that is a real and not a mere technical victory and is what both sides’ arguments were directed towards, throughout this process.
It is entirely routine for clients to seek Section 70 Detailed Assessment and for there to be a dispute between the parties as to whether the Bill in question is an interim statute, or interim non-statute, Bill. If the Solicitor prevails in arguing that it is an interim statute Bill and beyond the scope of Detailed Assessment, that is the end of it. However, if the client prevails in arguing that it is an interim non-statute Bill, the usual outcome is for an order that the Solicitor should render a final Bill for those costs, that will enable the same to be assessed as the client wishes.
78. In their evidence, ABC accepted that CFA2 could only work as a commercial proposition if it covered the proceedings until the point at which compensation was recovered, as without compensation GEHC would not have the wherewithal to pay the sums which fell due upon a ‘win’ {K1/6/367 pp 185-188}. ABC could scarcely do otherwise given the emphasis that RS has placed upon GEHC’s impecuniosity throughout these proceedings. However, despite this, when GEHC succeeded at the first Trial in front of Vos J, RS asserted both that there had been a ‘win’ under CFA2 and that CFA2 was at an end: ‘A win has been secured on the Trial of liability… The previous CFA arrangements are now at an end. New arrangements have to be entered into to deal with the further funding of the case…’ (Briefing Note of 11/1/13 [J1/196]).
79. CFA2 continuing was not presented to GEHC as a possibility; the reasons RS has subsequently offered for CFA2 being replaced (including alignment of risk between RS and GEHC and the suggestion that, because risk under CFA2 would have receded after the first Trial, Mr Gray would have exploited that to avoid paying the success fee) are discussed below from paragraph 166.
80. As to whether RS were entitled to raise a Bill in December 2012, albeit the definition of success in CFA2 upon which they rely, appears to have been met by that date, I am in some doubt. CFA2 defines success {H/H20} as GEHC achieving a settlement or any other benefit arising out of the Claim, or (if it does not settle and GEHC issue proceedings) the Court orders in GEHC’s favour and Mr Gray to pay costs. However, in discussing the level of success fee (which was set at the maximum 100%) it states that ‘… if you win we will not be paid our basic charges until the end of the claim’ [H/3/16 at (d)]. The definition of what is covered by the agreement, includes the claim brought by GEHC against Mr Gray, any proceedings taken to enforce a Judgment, Order or agreement, and dealing with party and party costs; it specifically excludes any Appeal (by GEHC or Mr Gray) against a final Judgment or Order [H/3/16].
81. There is a tension between those provisions but on its face CFA2 is stated to cover all work on the claim, up to a final Judgment or Order, excluding only work done on any Appeal therefrom. If RS wished to provide for recovery of the maximum 100% success fee under CFA2 on the basis it would not be paid until the end of the claim, it cannot (in my view) then rely upon the definition of success elsewhere in CFA2, to render a Bill at the earliest opportunity i.e. in December 2012.
82. As for estoppel this is in my view a bad point. RS credited GEHC with the balance of the Advance Fee paid under CFA2 (in the sum of £706,780.12) against their interim Bill, but that sum has not been irretrievably surrendered (or repaid). GEHC are not arguing that, if RS did not raise an interim statute Bill in December 2012, they have no right to render any Bill for those costs; subject to the Court’s decision upon the validity of the retainer and the termination thereof, it seems to me that RS can simply render a final Bill for the disputed costs now, applying the same credit to it; the sum of £706,780.12 would presumably appear in the Cash Account.
83. As for RS’s arguments regarding GEHC having relied upon the retainer in the party and party proceedings against Mr Gray, I deal with these under the validity of the retainer, rather than in the context of the validity of this particular Bill, below from paragraph 214.
84.
On the Davidsons v Jones Fenleigh point, Roskill LJ in that case specifically stated that if a Solicitor wishes a Bill to be treated as a complete self-contained Bill of costs to date, he must make it plain to the client that that is the purpose of sending that Bill to the client at that time; the client’s actions (in accepting and paying such a Bill) will be relevant on any subsequent challenge to that Bill. Given GEHC’s case that it was never made plain, plus the fact that it is not stated on the face of the Bill, nor – since there was none – in any covering letter, that this was RS’s intention in sending it, I do not find that point persuasive in RS’s favour either.
85. My decision is ultimately based upon the parties’ evidence in regard to this Bill which was, for GEHC, that the Bill was sent to them via email only, with no covering letter or other documentation. For RS, it was initially stated that the Bill was never emailed, it was sent through the post, with a timesheet attached by way of breakdown of time spent/work done. The timesheet would have been a bulky document, whether on paper or electronically, and it was put to Mr de Clare that he was wrong in stating that RS’s bill of 21 December 2012 was emailed not posted {K1/3/118-119, pp 72-73}. RS’s evidence prior to the Hearing was very clear that the Bill was not sent by email at all, and there was no question that it went by email alone.
86. Specific detail was given in ABC’s evidence before the Hearing, as to how the Bill could not possibly have been sent via email, and that, because an email had previously “bounced back” from GEHC’s server, the timesheet attachment would not have sent via email as it would be too large, hence post was the method of service, and ABC was adamant (and RS’s case was) that it had not been sent by email at all.
87. The significance of the method of service is that the Bill itself is a single sheet and its contents are of the briefest gist. In order to be an interim statute bill, it must comply with certain formalities as set out above; the single sheet Bill would not suffice but (per RS) the single sheet Bill accompanied by the timesheets, would give sufficient information to bring it within the test.
88. As at the commencement of the Preliminary Issues Hearing, those remained the parties’ respective positions and indeed it was put to Mr de Clare in cross-examination that he was wrong when he said that this Bill had been sent via email. Key to that line of questioning by RS, was the fact that GEHC had not been able to produce the email in question, which would of course have been the simplest way of proving its existence once and for all.
89. However, by the time ABC came to be cross-examined, there had been a new development in that GEHC had found the email sending the bill, which was duly produced as a late addendum to their Bundle [J177d and J177e]. At that stage, when ABC was cross-examined, ABC’s evidence changed; ABC now accepted that the Bill had been emailed {K1/7/K428, p 122}. However, ABC asserted that ABC still very clearly remembered that it had been sent by post as well, with a timesheet attached, but without any covering letter {K1/7/428-432}.
90. The email, so belatedly found, contained no reference to a timesheet or covering letter to follow by hard copy, and nothing in writing exists to show that GEHC were told what the timesheet was, how to read it and so on. Hence ABC’s clear recollection is an interesting and (in my view) a somewhat unlikely state of affairs. For a Solicitor in ABC’s position to recognise the significance of sending a hard copy Bill with a timesheet, so as to remember very clearly that it was posted (out of thousands of items of post that must go out from the firm every year) but not to think that significance warranted the safeguard (or the courtesy) of a covering letter, is extraordinary. A copy of a covering letter on RS’s file, would have been compelling evidence of service by post: there was none, and ABC’s explanation, which as I understand it is that ABC did not think it would be necessary, and did not expect GEHC to deny it so long after the event, was not persuasive.
91. There had been previous bills as referred to above, but they had never been sent with timesheets. This Bill was for a seven-figure sum and was the first Bill allegedly sent with a timesheet, yet there was no covering letter, nor any explanation of what the timesheet was, nor of how its contents were supposed to explain the contents of the Bill. The emailed copy (when it came to light) did not state that a hard copy, with timesheet to accompany it, would follow.
92. In the absence of any contemporaneous written evidence, in order to accept RS’s case, I would have to prefer ABC’s uncorroborated recollection (many years after the event) of a paper Bill sent by post, over GEHC’s evidence (supported by the email) on this issue. I would have to do so even though ABC’s initial, equally clear recollection, was that the Bill was never emailed at all and that RS’s witnesses were lying when they said that it was.
93. This is one of a number of occasions upon which a very important event, involving a large sum of money, has allegedly happened but in respect of which there is no paper trail to verify it, in spite of the fact that RS is a commercial law firm and well-versed in the importance of reducing important agreements to writing. An additional complication is the answer given by Mr Monych in cross-examination, to having no recollection of having received timesheets in a meeting in January 2013 but accepting their existence.
94. I have to say the evidence on that point is far from as helpful as RS would appear to think; what the transcript shows is Counsel for RS putting to Mr Monych, ABC’s Witness Statement in which ABC asserted that “I recall printing off the stack of time reports of our pre-21 December 2012 costs for a second time and giving them to Perry during the meetings I had with him, to discuss costs when he came to London“. Mr Monych replies, when asked if he remembers this, “I don’t, but if ABC says it’s-that was the case, and I don’t recall it but ABC says it’s the case, so…You know, you don’t make something up that’s that detailed, so I accept it…I don’t recall ever getting a breakdown at the time…I don’t recall ever getting a breakdown at the time. It was never – I don’t recall ever getting a posted Bill. I do accept that ABC printed all this stuff up for me and we went over it after the fact.”.
95. If we take references to time reports, time prints, breakdowns et cetera, as references to timesheets, with the exception of his final answer, Mr Monych’s evidence is to the effect that he has absolutely no recollection of receiving a posted Bill or of receiving timesheets, but that he does not like to gainsay ABC’s recollection of events and that if ABC says it is so, he will accept it. That is far from compelling and aside from his innate courtesy Mr Monych’s evidence is very clear: he has no memory of ever receiving the timesheets as alleged.
96. As to Mr Monych’s final answer, I note that in contrast to the complete lack of a contemporaneous paper trail for the December 2012 Bill, on 6 February 2013 [J1/249] ABC wrote to Mr Monych stating, “As discussed, I have extracted from the last time report I sent you all stage 2 costs, leaving behind those costs attributable against the stage 1 CFA. Attached is that time print together with invoice…” Stage 1 was the Liability matter, so that reads as though, on 6 February 2013, [J1/249] Mr Monych was sent the timesheets to match the Bill from December 2012. That would be late in time but if correct could arguably affect GEHC’s ability to assert that it had not received enough information to take advice upon, nor to challenge, the December 2012 Bill.
97. However, noting that the email refers to correcting the “…last time report I sent you…” to remove stage 2 (quantum) costs, no such costs would have been incurred as at 21 December 2012 as RS rendered a Bill to GEHC very swiftly after the Judgment of Vos J . As no Stage 2 costs would have been incurred at that point (when ABC allegedly posted timesheets to GEHC with the Bill) it becomes clear that the 6 February 2013 email refers to the 4-page timesheet for work done during December 2012 and January 2013, sent with the invoice of 1 February 2013 [G/11/22] which specifically references the time print attached, on its face. That timesheet can clearly be seen to mix liability and quantum costs [G/11/23-26], even though the invoice itself only relates to stage 1 (again, this is stated on its face).
98. In cross-examination, I understood ABC to have accepted that this was probably correct, and that the email was not probative of timesheets being sent with or after the December 2012 Bill after all, but given the order in which the witnesses were cross-examined, at the point where it was put to Mr Monych that he had been sent time sheets, it remained RS’s position that the 6 February 2013 email, proved that to be case.
99. There were other invoices and other timesheets sent by RS to GEHC, and Mr Monych clearly recalls having sight of timesheets in this matter, but having weighed the evidence on service of this Bill and its timesheets very carefully, on balance of probabilities, I prefer GEHC’s version of events. ABC’s memory is clearly not reliable, given that ABC was prepared to accuse their own former client of lying when the question of an emailed Bill was first raised by them; Mr Nimmo refers to their dispute on the December 2012 Bill as wholly without merit and vexatious [F53] and ABC states that ABC does not know how Mr Monych can say these things [C46, C47].
100. I am not aware of any explanation, much less any apology, from ABC and/or RS, following on from GEHC’s (admittedly late) production of the email in question, but it seems to me clear from the above that ABC misremembered the email of 6 February 2013, as supporting their claim to have sent GEHC timesheets for the Bill rendered in December 2012, and in asserting that that email proved their assertion ABC was, quite simply, wrong. The final answer given by Mr Monych above, needs to be viewed through that prism.
101. Not only is the sequence of events as described by ABC/RS extremely unlikely but the way that this issue played out before the emailed Bill came to light, should have been impossible. Of course, people lose things all the time; car keys, cash money and passports turn up with luck and patience, but something that should be impossible to lose, is an email. Any well-run Solicitors’ firm ought to have systems and practices in place whereby emails to clients, particularly those sending Bills, are retained and can be recalled from the server, archive or wherever they have been consigned. Even if such systems and practices have gone awry, an emailed Bill should not just go missing; it is, or should be, traceable by the firm sending it out.
102. Starting with the fact that there is no suggestion that the emailed Bill now produced, is not what it purports to be, RS evidently acknowledges that it was indeed emailed (as ABC acknowledged in cross-examination). How then did ABC come to give such specific evidence up to the last possible minute, that the Bill had never been emailed and that GEHC’s witnesses were lying when (as we now know) it had? At the time that ABC was setting out to assist the Court with evidence on the question of the emailed Bill, it seems to me that one of three things would have to have happened.
103. Firstly, it could be that ABC was so sure of their own recollection that ABC made no attempt to check with RS’s Accounts or IT Departments to see whether there was any record of such an emailed Bill having been sent. That would be an extraordinary way of proceeding given that, as a senior Solicitor, ABC would know very well the importance of verifying such a matter if possible. One would expect the necessary checking to take a matter of minutes, given that the date and number of the Bill, the amount thereof and GEHC’s contact details, could have been used to narrow down the search. Given that GEHC’s right to challenge a seven-figure Bill, hung in the balance, it would have been a reasonable and proportionate step and consistent with their duty to the Court, for ABC to contact those Departments before asserting that this Bill had never been sent by email but had only ever been sent by post.
104. Secondly, it could be that ABC did check with their firm’s accounts and IT departments and they advised ABC that they were unable to find any record of a seven-figure Bill being emailed to GEHC. That would be better, in that it would mean that ABC had taken reasonable and proportionate steps to comply with their duty to the Court. It would also mean that their firm’s record-keeping systems were in a poor state, given that an emailed Bill has now surfaced and is accepted by RS as being genuine.
105. The third option would be that ABC did ask, was told that the email did exist and chose to state that it did not, in the hope that GEHC had mislaid it (and given the late stage at which it was produced, it clearly took some finding). I have already indicated that I do not find ABC has been trying deliberately to mislead the Court and as such this option can be discounted.
106. However, options one and two are really little better and I do not believe that the question of what steps ABC took to discharge their duty to the Court, to check whether the December 2012 Bill had indeed been sent by email, has been dealt with satisfactorily in their evidence. The upshot of all of this is that where the only evidence of something having happened is ABC’s unsupported recollection, I am unlikely to accept their version of events. Where their recollection differs from the contemporaneous documents and/or the logical way that such matters ought to have played out, ABC has in my view most likely misremembered.
107. I appreciate that I have been asked to rule on whether there is a valid retainer, or whether for other reasons RS’s costs are not recoverable, yet I have begun with the question of whether a Bill raised under that retainer, is still capable of Detailed Assessment. The foregoing indicates that I found it convenient to take the scope issue out of turn, due to the insight that it has given into ABC’s uncorroborated recollections, upon which a great deal of RS’s case depends. I did not understand there to be similar issues with Mr Nimmo, who was running the case rather than setting up the retainer but who also seems to have been much more punctilious about note-keeping and following matters up in writing.
108.
Based upon the above, in my judgment the costs contained within the Bill, the subject of the Scope Application, are still capable of Detailed Assessment because I find as a question of fact (on the balance of probabilities) that it was only ever emailed to GEHC as a single sheet, with no timesheets provided in December 2012 or thereafter. ABC is (in my view) mistaken and has simply misremembered events when ABC says it was posted as well, with the timesheets but without any covering letter.
![Willis v GWB Harthills LLP & Others [2025] EAT 79, His Honour Judge James Tayler, Rule 76 Employment Tribunal Rules 2013, Rule 84 Employment Tribunal Rules 2013, Rule 74 Employment Tribunal Rules 2024, Rule 82 Employment Tribunal Rules 2024, Stage 1 Threshold Conduct, Stage 2 Discretionary Decision, Stage 3 Quantum Decision, Ability to Pay, Costs Discretion, Unreasonable Conduct, Capital Assets in Costs Assessment, Family Home Valuation, Equity Release, Joint Ownership of Property, Detailed Assessment, Standard Basis, Profit Share Entitlement, PHI Payments, Costs Capping, Broad-Brush Assessment, Means Assessment, Proportionality of Costs, Discretionary Factors in Costs Awards, Effect on Third Parties, Honesty of Party, Costs Application Principles, Conduct of Proceedings, Stage 4 Bowel Cancer Context, Zoopla Valuation Evidence, Stage 3 Costs Quantum, Shields Automotive Ltd v Greig, Howman v The Queen Elizabeth Hospital Kings Lynn, Jilley v Birmingham and Solihull Mental Health NHS Trust, Arrowsmith v Nottingham Trent University [2012] ICR 159, Vaughan v London Borough of Lewisham (No 2) [2013] IRLR 713, Doyle v North West London Hospitals NHS Trust, County Court Detailed Assessment, Costs Decision in Employment Tribunals](https://tmclegal.co.uk/wp-content/uploads/2025/06/Shutterstock_351049592-80x80.webp)
