Lord Justice Stanley Burnton:
Introduction
- This is an appeal by Stockler Brunton, a firm of solicitors, against the order of Henderson J, sitting with Assessors Costs Judge Rogers and Mr Graham Humby, dismissing the solicitors' appeal against the decision of a costs judge, Master Gordon-Saker, rejecting their claim for the sum of £50,000, alleged by them to be justified as a value element (also known as an uplift) for the work they had carried out on behalf of the Respondent, Mr Bilkus. For convenience, I shall refer to the appellants as "the Solicitors".
- Whether the Solicitors are entitled to any value element by way of remuneration for their work as solicitors for their client the Respondent depends on the answers to three questions:
(1) Was the work for which the value element was claimed contentious or non-contentious business with in the definitions in the Solicitors Act 1974? It is only if the work was non-contentious that a value element could be claimed. The Solicitors contend that their relevant work was non-contentious; the Respondent contends that it was contentious.
(2) If the work was non-contentious, was the work carried out by the solicitors pursuant to an agreement with the Respondent under which the solicitors could be entitled to a value element? The solicitors contend that there was no written non-contentious business agreement, and that they were therefore entitled to the fee set out in the Paragraph 3 of the Solicitors (Non-Contentious Business) Remuneration Order 1994, which could include a value element. The Respondent contends that the work in question was carried out under a written agreement which specified the remuneration of the solicitors, which did not include any value element.
(3) Are the Solicitors in any event precluded from claiming any value element by reason of the inaccurate invoice originally issued by them to the Respondent?
- The first of these questions raises an issue of general practical importance for solicitors and their clients as to the distinction between contentious and non-contentious business, and it was for this reason that permission was given by Arden LJ for this second appeal. The third question is also of general significance.
The legislative framework
- Agreements between solicitors and their clients relating to their remuneration for non-contentious business are authorised by section 57 of the Solicitors Act 1974:
Non-contentious business agreements.
57.(1)
a solicitor and his client may, before or after or in the course of the transaction of any non-contentious business by the solicitor, make an agreement as to his remuneration in respect of that business.
(2) The agreement may provide for the remuneration of the solicitor by a gross sum or by reference to an hourly rate, or by a commission or percentage, or by a salary, or otherwise, and it may be made on the terms that the amount of the remuneration stipulated for shall or shall not include all or any disbursements made by the solicitor in respect of searches, plans, travelling, stamps taxes, fees or other matters.
(3) The agreement shall be in writing and signed by the person to be bound by it or his agent in that behalf.
(4) Subject to subsection (5), the agreement may be sued and recovered on or set aside in the like manner and on the like grounds as an agreement not relating to the remuneration of a solicitor.
(5) If on any taxation of costs the agreement is relied on by the solicitor and objected to by the client as unfair or unreasonable, the taxing officer may enquire into the facts and certify them to the court, and if from that certificate it appears just to the court that the agreement should be set aside, or the amount payable under it reduced, the court may so order and may give such consequential directions as it thinks fit.
- Contentious business agreements are the subject of sections 59 to 66, of which the following are presently relevant:
Contentious business agreements.
59.(1) Subject to subsection (2), a solicitor may make an agreement in writing with his client as to his remuneration in respect of any contentious business done, or to be done, by him (in this Act referred to as a 'contentious business agreement') providing that he shall be remunerated by a gross sum, or by reference to an hourly rate, or by a salary, or otherwise, and whether at a higher or lower rate than that at which he would otherwise have been entitled to be remunerated.
(2)
Effect of contentious business agreements.
60.(1) Subject to the provisions of this section and to sections 61 to 63, the costs of a solicitor in any case where a contentious business agreement has been made shall not be subject to assessment or (except in the case of an agreement which provides for the solicitor to be remunerated by reference to an hourly rate) to the provisions of section 69.
(4) A contentious business agreement shall be deemed to exclude any claim by the solicitor in respect of the business to which it relates other than--
(a) a claim for the agreed costs; or
(b) a claim for such costs as are expressly excepted from the agreement.
- Contentious business and non-contentious business are defined in section 87(1):
"contentious business" means business done, whether as solicitor or advocate, in or for the purposes of proceedings begun before a court or before an arbitrator . . . , not being business which falls within the definition of non-contentious or common form probate business contained in section 128 of the Senior Courts Act 1981;
"non-contentious business" means any business done as a solicitor which is not contentious business as defined by this subsection;
The reference to the Senior Courts Act 1981 dates only from 1 October 2009, but that amendment is irrelevant to this appeal.
Action to recover solicitor's costs.
69. (1) Subject to the provisions of this Act, no action shall be brought to recover any costs due to a solicitor before the expiration of one month from the date on which a bill of those costs is delivered in accordance with the requirements mentioned in subsection (2);
(2) The requirements referred to in subsection (1) are that the bill must be
(a) signed in accordance with subsection (2A), and
(b) delivered in accordance with subsection (2C).
Taxation on application of party chargeable or solicitor.
70. (1) Where before the expiration of one month from the delivery of a solicitor's bill an application is made by the party chargeable with the bill, the High Court shall, without requiring any sum to be paid into court, order that the bill be taxed and that no action be commenced on the bill until the taxation is completed.
(2) Where no such application is made before the expiration of the period mentioned in subsection (1), then, on an application being made by the solicitor or, subject to subsections (3) and (4), by the party chargeable with the bill, the court may on such terms, if any, as it thinks fit (not being terms as to the costs of the taxation), order
(a) that the bill be taxed; and
(b) that no action be commenced on the bill, and that any action already commenced be stayed, until the taxation is completed.
- As can be seen, section 60(4) precludes a solicitor from adding an uplift to his remuneration for contentious business. An uplift was however permitted by the Solicitors (Non-Contentious Business) Remuneration Order 1994, made under section 56 of the 1974 Act:
3. 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;
(h) the importance of the matter to the client; and
(i) the approval (express or implied) of the entitled person or the express approval of the testator to:-
(i) the solicitor undertaking all or any part of the work giving rise to the costs or
(ii) the amount of the costs.
The "entitled person" in a context other than inheritance is the solicitor's client: see article 2. The 1994 Order has been replaced by the Solicitors' (Non-Contentious Business) Remuneration Order 2009, but the former order continues to apply to bills delivered before 11 August 2009, as were the Solicitors' bills in the present case.
- It is common ground that article 3 of the 1994 Order does not entitle a solicitor to remuneration in excess of that to which he has agreed with his client. In effect, article 3 applies where the amount or basis of the solicitor's remuneration has not been specified in their agreement.
The facts
- My account of the facts is taken from Henderson J's clear judgment.
- In January 2001 Mr Bilkus retained the Solicitors to act for him in a dispute about his interest in a company called Clearsprings (Management) Ltd ("Clearsprings"). The sole issued share in the company was registered in the name of a former business partner of Mr Bilkus, Mr Graham Ian King. Mr Bilkus' case was that Clearsprings had been formed by himself and Mr King as a vehicle to carry on the business, and it had been orally agreed between them that they would each hold 50% of the issued shares. He claimed that, in breach of this agreement, no share in Clearsprings had been issued to him and he had also been excluded from its management since August 2000.
- The basis of the Solicitors' charges was set out in Mr Stockler's letter to Mr Bilkus dated 25 January 2001. In it, Mr Stockler said that he was the senior partner of the Solicitors with ultimate responsibility for the matter. Under the heading "Fees", he described how the Firm's charges would be calculated:
Our charges will be calculated mainly by reference to the time spent by me, the other solicitors and executive staff dealing with this matter. This includes advising, attending on you and others, dealing with papers, correspondence, telephone calls, travelling and waiting time. These rates do not include VAT, which will be added to the bill.
As a partner my charging rate is £250.00 per hour. The charging rate for an Assistant Solicitor is £205.00 per hour. If any work is undertaken by a Legal Assistant, this will be charged at £150.00 per hour. In addition, we will charge all disbursements incurred on your behalf to include internal photocopying, telephone/facsimile charges, local fares and courier charges. The charging rates that I have quoted are reviewed annually, and therefore if this matter has not been concluded before the next review takes place, they will be subject to an increase. I shall let you know the new rates on the next review which will apply to work done from that date.
In matters such as this it is not possible to accurately estimate how many hours of work will be necessary to complete the matter. My firm therefore adopts a policy of charging for each hour (or part thereof).
- The letter went on to say that it was the Firm's normal practice to ask clients to make payments on account of anticipated costs and disbursements, and interim bills would be delivered at monthly intervals for the work carried out during the conduct of the case. The letter concluded:
Order for Costs
I should also explain that at the conclusion of this matter, and in the event that you are successful, it may be that you will be entitled to the payment of your costs by some other party. However, it is rare for the Court assessment procedure, known as "detailed assessment" of costs, to result in the other party having to pay the full amount of your costs. This is a complex subject which I shall be happy to explain further if you wish.
In the event that you are successful and the costs of the matter fall to be paid by the other party, you will be able to claim interest on those costs to be paid as from the date on which the order for costs was made. To the extent that any of our charges have not been paid, we will retain any sums paid to us by way of costs or interest thereon.
As confirmation that you would like my firm to proceed on this basis, I should be grateful if you would sign the extra copy of this letter and return it to me. At the same time, please forward your cheque made payable to this firm in the sum of £2,500."
- Mr Bilkus duly signed and returned the copy of the letter, writing the words "Agreed and accepted" above his signature.
- In May 2001 on behalf of Mr Bilkus the Solicitors issued proceedings in the Chancery Division of the High Court, seeking a declaration as to his entitlement, specific performance of the agreement to constitute him a 50% shareholder, and injunctive relief. The proceedings were successful, and on 2 November 2001, after a seven day trial before His Honour Judge Weeks QC (sitting as a Deputy Judge of the High Court), judgment was handed down in favour of Mr Bilkus. In due course, a share in the company was issued to him, and a nominee of his was appointed to the board.
- Mr Bilkus' interest in the company having been secured, the decision was taken to present a petition under section 459 of the Companies Act 1985, alleging that Mr King had conducted the business of the company in a way that was unfairly prejudicial to Mr Bilkus. On 30 January 2002 a petition was issued, naming Mr King and Clearsprings as the respondents. The relief sought was an order that Mr King should sell his registered share in the company to Mr Bilkus, or alternatively that Mr King should purchase Mr Bilkus' registered share, in either case at a price to be fixed by a valuer agreed between the parties (or, in default of agreement, appointed by the President of the Institute of Chartered Accountants in England and Wales), and that the valuer should be directed to value the share on certain specified assumptions.
- On 1 March 2002 Mr King's solicitors wrote to the Firm making an O'Neill v Phillips [1999] 1 WLR 1092 offer, expressed to remain open for acceptance for 21 days. The letter conceded unfair prejudice in relation only to Mr Bilkus' exclusion in August 2000, and offered to purchase his shareholding without discount at a price to be determined by an independent valuer. In the light of this offer, which was not accepted within the 21 day period, various directions were given by the court and the parties continued to negotiate. Eventually, on 15 August 2003 Mr Registrar Baister directed that Mr Bilkus should sell his share to Mr King or Clearsprings, and on 28 October 2003 a hearing took place before Lawrence Collins J in order to determine the issues on which the parties remained divided.
- Lawrence Collins J handed down his judgment on the following day, 29 October. In paragraph 18 he recorded that it was common ground that the price to be paid for Mr Bilkus' share was to be determined by an independent valuer, and not by the court. The valuer would act as an expert, not as an arbitrator, and would be appointed by the court rather than by the parties. The judge went on to decide, among other points, that the valuation should be a single stage process, and that the valuation date should be 1 December 2003. By his order, which was entered on 18 November 2003, he appointed Mr Jim Eales of Ernst & Young LLP to act as the valuer, and directed him to value the share to be sold at 50 per cent of the fair market value of the company as a going concern as between a willing vendor and a willing purchaser, with no discount to reflect the fact that the share was not a majority holding. The order included directions as to the conduct of the valuation and made provision for the parties to bear the valuer's fees and expenses equally unless he otherwise ordered. The order directed Mr Bilkus to sell, and Mr King and Clearsprings to purchase, the share at the value certified by the valuer within 21 days of the valuation being received.
- The order made by Lawrence Collins J was a final order, which brought the section 459 petition proceedings to an end. This point was emphasised by the judge in a memorandum which he sent to counsel on 4 November 2003 concerning the draft minute of order:
There should not be an express liberty to apply. This is a final order, and the extent to which either party may make any further application should be left to the general rules.
- The Solicitors continued to act for Mr Bilkus in relation to the valuation of his share, and the detailed assessment of the costs of the proceedings. No new agreement, written or informal, was made as to the Solicitors' fees; nor was anything said by the Solicitors as to any new basis for their charges. The work done in relation to the valuation included the instruction of Grant Thornton to prepare detailed written submissions to the valuer, and the instruction of leading counsel, Mr George Bompas QC, principally to advise in relation to the agreements which underlay Clearsprings' business. On 4 August 2004, the valuer valued Mr Bilkus' share at £6.6 million. This was an excellent result for Mr Bilkus: the valuation was at a multiple of the sum Mr Bilkus had been prepared to accept. The sale of the share at that price was then duly completed.
- Despite the Solicitors' promise to deliver interim bills on a monthly basis, their frequency soon became rather less regular. However, a series of bills was delivered from 12 April 2001 onwards, and the penultimate bill in the series was dated 7 June 2004. As the Master records in paragraph 10 of his judgment, all of the profit costs in these bills were charged by reference to hourly rates in accordance with the letter dated 25 January 2001, although the rates increased as time passed. There is no indication in any of the bills that the basis of charging changed at any stage, or that the Solicitors regarded the "matter" referred to in the letter of 25 January 2001 as being at an end. Furthermore, the three bills delivered after the judgment of Lawrence Collins J in October 2003 (dated respectively 30 January, 26 March and 7 June 2004) still treated the matter as a continuing one, and the narrative ends with the words "This matter continues".
- On 5 August 2004, the day after Mr Eales had produced his valuation, Mr Stockler sent a memorandum to Mr Holding-Parsons, a consultant at the Firm who had done much of the work in relation to the matter, saying that he had asked the Solicitors' cost draftsman to prepare an up to date bill. He continued:
It seems to me that we ought to be entitled to charge an uplift for success. It seems to me that you ought perhaps to talk to [the costs draftsman] when he returns about how to do this. I have had a quick look at Cook on Costs and I cannot immediately find anything which deals with the matter
I seem to remember that, in any event, during our last meeting with Michael Bilkus he discussed with me the possibility of my adding something to the bill if I agreed not to press him too hard for existing payment, provided of course we won.
- On 26 August 2004 a draft final bill was prepared, covering the period from 2 June to 26 August. The narrative described the work covered as "representation of your interests in the valuation process which resulted in the Valuer, J R Eales valuing the share at £6,600,000.00", and went on to give a detailed breakdown. It charged for the work done by reference to hourly rates, but added as part of the profit costs a so-called "Value Factor (Ό %)" in the sum of £16,500, i.e. one quarter of one percent of £6.6 million.
- This draft bill was never signed by the Solicitors, but it was sent to Mr Bilkus, probably by Mr Holding-Parsons, while Mr Stockler was away on holiday. Mr Bilkus queried the "value factor", and following Mr Stockler's return from holiday a meeting between them took place on 8 September 2004. In his witness statement dated 15 August 2005, Mr Bilkus described the meeting as follows:
During that meeting he [Mr Stockler] skirted around the issue of the £16,500 "value factor" and said that he thought that it was only right that he should have £50,000 for getting such a good result. I was initially speechless, Helen [Mr Bilkus' partner, Helen Bettles] pointed out that this was not at all what had been agreed at the outset and at no point since the beginning of the matter had the possibility of an uplift in addition to the costs set out in the client care letter been raised. I was very surprised at this suggestion and didn't really know what to do about it at first. I had been very pleased with the result but didn't see why I should pay so much more than had originally been agreed. I told him I would need time to take it in and would get back to him.
I did not agree to the uplift. I was particularly surprised at this request as I had asked at the outset whether there was any possibility of a deal being struck on the basis of the outcome of the case but the [Solicitors] had always maintained that this was not possible.
- In his witness statement in reply, dated 12 September 2005, Mr Stockler agreed that a meeting had taken place on 8 September 2004 between himself, Mr Bilkus and Helen Bettles, and said that at the meeting:
I asked him to agree an uplift of £50,000 on the final bill for the valuation work, based on the success we had achieved in obtaining a valuation of £6.6 million, even though Mr Bilkus had been prepared a few months before to sell his share to Mr King for £1.5 million.
- On the next day, 9 September 2004, Mr Stockler wrote to Mr Bilkus, enclosing the Solicitors' final invoice dated 3 September 2004 (mis-described in the letter as "an account for the period to 26 August 2004"). The narrative on this invoice was much the same as the narrative on the draft invoice of 26 August, but the number of hours charged for the services of Mr Holding-Parsons had substantially increased (94 hours 45 minutes instead of 70 hours), and instead of the "value factor" of £16,500 a sum of £50,000 was charged, described as "Uplift on all bills since 2001". In his letter, Mr Stockler said this:
I refer to our meeting yesterday.
In accordance with our discussion, I have incorporated an uplift figure of £50,000. This relates to both of the cases since I was first instructed in the year 2001.
The total profit costs (excluding disbursements such as Counsel's fees) on all bills in relation to the whole of the Clearsprings matter from day one have amounted to approximately £310,000. Although one cannot be precise, because the rates of charge have changed over the years, an uplift of £50,000 is approximately equivalent to 16%.
In order to give you the maximum possible information, I can do no better than to attach copies of a number of pages out of "Cooke [sic] on Costs". The book is unfortunately a little out of date, but the principles referred to in it still apply.
I quite accept that each case must be looked at on its own merits, but I do believe that an uplift of such a relatively small percentage (16%) in the context of a highly complicated and extremely valuable claim is far from unreasonable. I hope that you will agree that we carried out an excellent job for you and recovered more than you expected.
- On 14 September 2004 Mr Bilkus replied, saying that he would consider the Solicitors' request but he had not agreed the additional charge of £50,000.
- In August 2005 Mr Bilkus, who had changed solicitors, commenced proceedings under section 70 of the Solicitors Act 1974 seeking detailed assessment of bills delivered to him by the Solicitors between 12 April 2001 and 3 December 2004. Pursuant to an order made by Master Bowles on 17 March 2008, the detailed assessment at the hearing before Master Gordon-Saker was confined to a single item on a single bill, namely the sum of £50,000 charged on the Solicitors' invoice number 26233/7602 dated 3 September 2004 and described on the bill, as issued, as "Uplift on all bills since April 2001".
- Prior to the hearing, the Solicitors had notified Mr Bilkus that it would apply for permission to amend the narrative for the charge of £50,000 so that it read "Uplift to reflect the factors set out in The Solicitors' (Non-Contentious Business) Remuneration Order 1994". The Solicitors argued that the original narrative was a mistake, because the earlier bills from April 2001 onwards were all final bills for contentious work which could not subsequently be increased, and only the last bill in the series dated 3 September 2004, which was said to relate largely to non-contentious work, was intended to be subject to the uplift claimed.
- The hearing before Master Gordon-Saker took place on 24 September 2008. In a reserved judgment which he handed down on 11 November 2008, the Master refused the Solicitors permission to amend the invoice. He referred to the guidance given by the Court of Appeal in Polak v Marchioness of Winchester [1956] 1 WLR 818, where Jenkins LJ said that a strict view has to be taken to maintain the necessary safeguards, and "[i]t is only in exceptional cases, cases of special circumstances, of genuine mistake [or] inadvertence, that assistance ought to be given". After reviewing the evidence, the Master concluded in paragraph 38 of his judgment that the Solicitors "intended to claim an uplift on all of their bills since April 2001 whether the work was contentious or non-contentious." He continued:
39. In paragraph 5 of his statement Mr Stockler submits that the mistake is manifest because, as a matter of law, no uplift could be charged on a series of final bills in the last bill. However it seems to me that, whatever the legal analysis, this is precisely what was intended to charge an uplift on a series of bills. The mistake was not the description of the uplift, as the Defendants contend, rather it was the failure to appreciate that no uplift could be charged on these bills because they were final."
- Having refused permission to amend the invoice, the Master then proceeded to consider the issues which had been articulated in the skeleton arguments, although he recognised that much of the argument on those issues had become redundant in view of his decision not to permit the amendment. The issues were:
(1) Was the business to which the £50,000 fee related contentious or non-contentious (it being common ground that no separate value element could be charged for contentious business)?
(2) Did the terms of the retainer between Mr Bilkus and the Solicitors prevent a value element being charged?
(3) Was the value element reasonable?
- In relation to the first issue, the Master held that all of the bills in the series included contentious work, and even the final bill of 3 September 2004 included some contentious work (attending a detailed assessment hearing in relation to a costs order made in the earlier litigation, and considering the possibility of garnishee proceedings and a freezing order). Although he did not say so in terms, it was clearly implicit in this conclusion that the Master accepted the submission for the Solicitors that most of the content of the final bill related to non-contentious business, namely the representation of Mr Bilkus' interests in the share valuation which had been ordered by Lawrence Collins J at the conclusion of the proceedings under section 459 of the Companies Act 1985.
- The Master also held that, in so far as the uplift claimed related to non-contentious business, it was not claimed "as a value element" and therefore could not be allowed as such under The Solicitors' (Non-Contentious Business) Remuneration Order 1994.
- In relation to the terms of Mr Bilkus' retainer, it was common ground that the only written record of those terms was to be found in the letter dated 25 January 2001. As a matter of construction of the letter, the Master held that the fees chargeable by the Solicitors were confined to time charges at specified hourly rates plus disbursements. He then said (paragraph 53 of the judgment):
Where a solicitor and client have agreed an hourly rate at the outset of the retainer, the solicitor cannot then charge an uplift on that hourly rate at the end of the case unless his right to do so has been agreed by the client. In this case there is no evidence that the Claimant agreed to an uplift on the hourly rate or that the parties intended anything other than an all-inclusive hourly rate.
- The Master then referred to, but did not rule upon, an argument for the Solicitors that the retainer agreed in the letter of 25 January 2001 did not contemplate the non-contentious business required by the valuation exercise, and therefore did not cover it. He said that, whether or not this argument was correct, the uplift purported to be in respect of all of the work performed by the Solicitors, and in any event all of the bills in the series, apart from the last, were final bills in respect of the periods which they covered.
- In view of the conclusions which he had reached, the Master found it unnecessary to consider the third issue, that is to say the reasonableness of the value element claimed by the Solicitors.
- By his order dated 8 December 2008, the Master directed the Solicitors to pay the disputed sum of £50,000 to Mr Bilkus by 5 January 2009 and to pay his costs of the detailed assessment proceedings which he summarily assessed in the sum of £8,062.50 (including VAT and court fees).
The judgment of Henderson J
- On the Solicitors' appeal from the order of Master Gordon-Saker, Henderson J held:
(1) All the work done by the Solicitors, including their work in relation to the expert valuation of Mr Bilkus' share in Clearsprings, was contentious business.
(2) The terms of the agreement contained in the letter of 25 January 2001 applied to all the work of the solicitors, even if, contrary to the judge's view, that part of the Solicitors' work that related to the valuation was non-contentious.
(3) The Master had been right to refuse to permit the Solicitors to amend their invoice.
- Before us, Mr Stockler challenged each of these conclusions. Mr Chelmick, for Mr Bilkus, submitted that each of the judge's conclusions was well-founded.
Contentious or non-contentious?
- This issue is surprisingly devoid of judicial authority. We were referred to the judgment of HH Judge King sitting with assessors in C v C [1997] 2 FLR 22, which concerned conveyancing work arising out of family litigation, but there it was assumed that the work was non-contentious. The practice advice in the booklet "Non-contentious costs" published by the Law Society does not address the issue in the present case.
- It can be seen that (leaving aside probate work) whether work done by solicitors is contentious or non-contentious depends not on the nature of that work, but on whether it was done "in or for the purposes of proceedings begun before a court or before an arbitrator". Thus work done in relation to a valuation carried out by an independent expert, even though highly disputed, is not intrinsically contentious.
- Henderson J's principal reasons for his conclusion are in paragraphs 37 and 38 of his judgment:
37. To the question thus posed there can in my judgment be only one answer. The work was done both in and for the purposes of proceedings begun before a court. The section 459 petition proceedings were clearly proceedings begun before a court (by the initial presentation of the petition in the Companies Court), and the valuation was an integral and essential part of ascertaining the remedy to which the petitioner, Mr Bilkus, was held by the court to be entitled. There could be no sale of his share to Mr King until the price to be paid had been ascertained, and the sole purpose of the valuation was to ascertain that price. This is reflected in the terms of the judge's order of 29 October 2003: the share was not to be sold until 21 days after the valuation had been received.
38. It is true that the value of the share was not decided by the court, and the order of 29 October 2003, as the judge emphasised to counsel, was a final order. From one point of view, therefore, his order brought the petition proceedings to an end. However, for the purposes of the definition of contentious business, the proceedings must in my view be regarded as continuing at least until the relief awarded to the successful party had been ascertained. The valuation was part and parcel of this process, and although it was not performed by the court, it was performed pursuant to directions given by the court, and as a necessary step in working out the relief awarded by the court. The valuation was also, in itself, highly contentious, and as a matter of common sense it formed part of the single dispute between the parties which began with the presentation of the petition and ended only when the purchase price of Mr Bilkus' share had been ascertained and paid to him upon completion of the sale.
- Mr Stockler submitted that the judge had misconstrued the words "for the purpose of", which must relate to court or arbitration proceedings that have begun and are continuing or are begun after the work is carried out. In the present case, the court proceedings had ended with the final order made by Lawrence Collins J. Any work for the purpose of the expert valuation was therefore non-contentious.
- In paragraph 38 of his judgment, Henderson J held that the "proceedings" for the purposes of section 87(1) of the 1974 Act continue until the relief granted by the court has been ascertained, and in this case it was not ascertained until the valuer had issued his valuation. It followed that the work in relation to the valuation was contentious business. On this basis, proceedings for the purposes of the statutory definition continue after proceedings begun before a court have come to an end. In my judgment, there is no justification in the Act for that extension of the normal meaning of proceedings.
- In my judgment, one should construe the words "in or for the purposes of proceedings" as a composite whole. Business (or work) "in
proceedings begun before a court" refers to the work done in the actual litigation. Work "for the purposes of proceedings" may be carried out before the proceedings are begun (taking instructions, writing a letter before claim, obtaining evidence and so on) or during the proceedings. Obtaining a witness statement may be regarded as done for the purposes of proceedings, even if the witness statement is not ultimately served or used; the filing and service of a witness statement is work done in the proceedings. The phrase "for the purposes of" requires the proceedings to be contemporaneous with the work in question or to be in the future. Work done after the completion of proceedings is done not for the purpose of those proceedings, but in consequence of those proceedings.
- One can take other examples of work following a court order that, in my judgment, is non-contentious. In proceedings between a former husband and wife, the court holds that the wife is entitled to the former matrimonial home, and orders that the husband convey it to her. The husband then instructs solicitors local to the property to carry out the conveyance. In my judgment, the work of the conveyancing solicitors is non-contentious. This is, I think, the understanding of the profession, as reflected in the judgment in C v C. This example does not depend on the fact that the husband instructs separate solicitors for the conveyancing work, but the inclusion of this fact highlights the good sense of the work being classified as non-contentious. Indeed, one can imagine a case in which the new solicitors are not told that the conveyancing was done pursuant to a court order. I do not think it would make any difference if the court order required the value of the house to be ascertained by a valuer and all or part of the value to be paid by one party to another. A dispute does not render business contentious unless court proceedings or arbitration proceedings are involved.
- However, I do think that this case is different. The valuation of the shares in Clearsprings was carried out under a court order, and pursuant to directions given by the court. I do not think it possible to distinguish this case from the costs of the solicitor who writes to the other side following a judgment to obtain payment of a sum ordered by the court to be paid to his client. That work is done for the purpose of the proceedings, in that it cannot sensibly be distinguished from those proceedings.
- I would add that steps taken to enforce a judgment through the courts, for example by one or other of the methods listed in the Practice Direction to CPR Rule 70, are clearly themselves proceedings.
- For these reasons, I would hold that the work done by the Solicitors in relation to the expert valuation carried out by Mr Eales was contentious business.
Was the Solicitors' work in relation to the valuation within the scope of the letter agreement dated 25 January 2001?
- Mr Stocker submitted that the letter of 25 January 2001 related only to work in or for the purposes of the anticipated (and in the event actually begun) proceedings before the courts. It referred to the Solicitors' costs being subject to detailed assessment, to the possibility of costs being recoverable from another party, and to the fact that it was unlikely that their costs would be completely recoverable from the other side even if they were successful. It followed that the letter, and the basis of remuneration contained in it, were inapplicable to the non-contentious business the Solicitors had carried out.
- It is common ground that sections 57 and 59 of the 1974 Act do not require separate agreements relating to contentious and non-contentious business. A single written agreement, signed by both parties, may cover both kinds of business. Whether the agreement does so will depend on its true construction in the circumstances prevailing when the business in question is carried out.
- I accept that the terms of the letter, when it was written and agreed, applied to the contentious business then anticipated. But when the Solicitors continued to act after judgment had been given by Lawrence Collins J without seeking Mr Bilkus' agreement to any other basis of charging, or even informing him that any other basis of charging would be applicable, he was entitled to assume that nothing had changed: that the same basis of charge continued. Mr Bilkus was not a solicitor; it can safely be assumed that he had no knowledge of the statutory definitions in the 1974 Act or of their relevance. The reasonable client, in the circumstances of this case, would consider that the Solicitors were continuing to work under the terms of the letter agreement.
- Indeed, it may be significant that although the Solicitors' own final invoice dated 3 September 2004 stated that the proceedings had been concluded by the order of Lawrence Collins J dated 29 October 2003, it does not distinguish between the basis of charge for work done by them before and after that date.
- In my judgment, it is incumbent on a solicitor who seeks to charge a client on a different basis from that previously agreed to make his intention clear to his client, who must be given an informed opportunity to agree or to reject the new basis of charge, and if he so chooses to cease to instruct the solicitor. Mr Bilkus was not given that opportunity.
- It follows that I would uphold the finding of the judge that the Solicitors are not entitled to any remuneration beyond that agreed in the letter of 25 January 2001. Thus for this reason too they are not entitled to any value element or uplift.
Should the Solicitors be permitted to amend their invoice?
- In view of my conclusions as to the contentious nature of the business in issue and as to the application of the letter agreement of 25 January 2001 to all the work carried out by the Solicitors on behalf of Mr Bilkus, it is strictly unnecessary to determine this issue. Since, however, the issue is of some general importance, and we heard full argument on it, I shall address it.
- As has been seen, section 69 precludes a solicitor from enforcing his claim for costs unless he has delivered his bill for those costs in accordance with the statutory requirements. Section 70 confers power on the client to apply for the bill to be taxed. It is implicit in these provisions that the only bill that can be taxed is that delivered in accordance with the statutory requirements, and that the client has a right to have that bill taxed, rather than any subsequent bill delivered without his agreement in relation to the same work and disbursements. The right of the client is not however unqualified: the court has an inherent jurisdiction to permit the solicitor to withdraw or to amend an incorrect bill.
- As early as 1854, it was recognised that a solicitor could not withdraw the bill he had delivered to his client. In Re Catlin (1854) 18 Beav. 508, 519, the Master of the Rolls, Sir John Romilly, said:
It is, I am informed, well established in practice that where a solicitor has delivered a bill of costs to his client, and proceedings between the parties have been taken to tax it under the statute, no alteration can be made in it except by consent. The reason and justice of this is obvious, and it appears to me to rest not less on principle than on practice. If one species of alteration be made, any other might. Who is to determine what alteration might or might not be made and if any alteration may be made? It is clear that a bill could be altered to meet the turn which the taxation was taking, In my opinion, the Master has no jurisdiction in taxation to permit any alterations or amendments to be made in the bill, except such as the client may consent to.
The statute to which he referred was the Solicitors Act 1843. In Re Thompson (1885) 30 Ch D 441, Cotton LJ said, at 448:
Now, it has been well established that, when a solicitor sends in his bill, he gives the client to whom he sends it in a right to have that bill taxed. That rule was laid down to prevent any attempt being made by solicitors to impose on clients, who did not know what the proper charges were, by sending in a bill which would not stand taxation, and then, when taxation was insisted on or threatened, sending in another bill which they knew could stand taxation. The rule has been carried so far that even where objections have been made to particular items of a bill delivered, and the solicitors have, with the assent of the client, taken back the bill for the purpose of reconsideration and have struck out certain items, the Court has held that the bill to be taxed must be the bill as it was originally sent in and not the bill as amended.
- However, the absolute rule was subsequently relaxed. In Sadd v Griffin [1928] 2 KB 510, Farwell LJ, giving the judgment of the Court of Appeal, said:
it is settled beyond controversy that the solicitor is, for the purposes of taxation, bound by the bill that he has delivered and cannot alter it without the leave of the Court or the consent of the party.
- However, it was emphasised that the jurisdiction of the court to grant leave to a solicitor to alter or to withdraw his bill was to be carefully and sparingly exercised, being restricted to cases of genuine mistake or error on the part of the solicitor when preparing his original bill. In Polak v Marchioness of Winchester [1956] 1 WLR 818, the Court of Appeal confirmed that it had an inherent jurisdiction to permit a solicitor to withdraw his incorrect bill of costs and to substitute a fresh correct bill, but Jenkins LJ said. at 827:
I entirely agree with the judge when he said that one has to take a strict view to maintain the necessary safeguards, and nothing I say is to be regarded as suggesting to solicitors that they can be careless or unbusinesslike in a matter such as this, and then as of course apply for and receive the assistance of the court. It is only in exceptional cases, cases of special circumstances, of genuine mistake [or] inadvertence, that assistance ought to be given.
- These principles are equally applicable to bills delivered following the enactment of the Solicitors Act 1974. Thus, if the client makes an application under section 70, as Mr Bilkus did in the present case, if the solicitor seeks to amend the bill, for whatever reason, he must seek the permission of the court. Otherwise, the bill as originally delivered is the one that is taxed, and if it contains unjustifiable charges they will be taxed off.
- In the present case, the last bill as delivered included an impermissible charge. As stated above, the charge of the uplift was described as "Uplift on all bills since April 2001". Those bills were entirely or principally for contentious business, for which the uplift was excluded by section 60(4). It followed that unless the Solicitors could withdraw that bill and submit a new bill justifying an uplift, or amend it to that effect, the Master was bound to disallow the claim for the uplift. In the event, the Solicitors sought permission to amend the bill so as to describe the sum claimed as "Uplift to reflect the factors set out in The Solicitors' (Non-Contentious Business) Remuneration Order 1994".
- We are reviewing the exercise by Henderson J of a judicial discretion. He was himself reviewing the exercise by the Master of his original discretion. Master Gordon-Saker refused to permit the Solicitors to substitute their proposed amended bill, on the ground that he could not be satisfied that the error in describing the claim for £50,000 as an uplift in relation to all the work that they had carried out for Mr Bilkus, including their work in and for the purposes of the proceedings in the Chancery Division, was an error.
- Henderson J upheld this decision of the Master. He said:
48. In his oral submissions, Mr Stockler
frankly acknowledged that he had been in error in supposing that it was possible to charge an uplift for contentious work, and said that he tried to make the £50,000 charge "look more appetising" to Mr Bilkus by treating it as an uplift on all of the bills since April 2001. I do not find this explanation entirely easy to reconcile with what Mr Stockler said in his witness statement, but whatever Mr Stockler may or may not have subjectively intended, there can be no doubt that the bill would have been read by any reasonable recipient as intended to charge the uplift on the whole series of bills since April 2001. A mistake of that character in my judgment evinces a serious disregard of the Firm's contract with its client and the relevant provisions of the Solicitors Act 1974. It is not the kind of mistake from which any firm of solicitors should expect to be relieved, let alone a firm based in the City of London and holding itself out as capable of dealing with complex High Court litigation.
49. I emphasise that this is not just a matter of discipline for its own sake. It is essential that the terms upon which a solicitor charges his client should be recorded in writing, and that a solicitor should not attempt to charge fees which are contrary to the terms of his retainer. It is also essential that, in all save exceptional circumstances, the client should be able to rely on the accuracy, both factual and legal, of bills which he receives from his solicitor. The particular mischief in the present case is that the Firm sought to charge an unjustified success fee of £50,000, in circumstances where it was clear that the client had not agreed to this. Many clients might have been willing to pay a success fee of £50,000 following a valuation which had been so successful, whether or not they were legally obliged to do so. However, Mr Bilkus was fully entitled to stand on his legal rights, and to insist that the Firm should be paid the fees which had been agreed, and no more. He may well have reflected that the Firm would have been unlikely to agree a reduction in its fees if the valuation exercise had gone against him. In any event, the important point, as it seems to me, is that the Firm deliberately sought to charge a substantial fee by way of uplift which had no possible justification. In those circumstances, the Master was in my judgment quite right to refuse the Firm permission to amend the invoice.
- Like Henderson J, I see no error of law or principle in the Master's exercise of his discretion. He was entitled to exercise it on the factual basis that the Solicitors had not shown that their bill containing the claim for £50,000 had been submitted as a result of a genuine error of the kind for which they should have been relieved. I entirely agree with and endorse what Henderson J said in paragraphs 48 and 49 of his judgment. The bill dated 3 September 2004 was misleading: it indicated that the £50,000 was an uplift sought in relation to all the work carried out by the solicitors, for which their charges were some £310,000. Viewed on this basis, it might have been thought a minor uplift of an acceptable minor percentage of the overall fees. But even if there had been no contrary agreement as to fees, an uplift could only be justified in relation to the non-contentious work, for which the fees determined in accordance with the letter agreement were less than £100,000. An uplift of this proportion would have been far more difficult to justify to a client. In my judgment, in these circumstances unless the Solicitors established that the error in the description of the uplift was genuine inadvertence or the like, it would have been quite wrong to permit them to withdraw or to amend the bill. They failed to establish that there had been an error on their part that could justify the grant of permission. To the contrary, it was clear from Mr Stockler's letter of 9 September 2004 that the description of the uplift, and the justification for it put forward by him, were deliberate.
- Since the uplift as described in the bill as delivered could not be justified under the agreement between the Solicitors and Mr Bilkus, or under section 60 of the 1974 Act, the Solicitors are not entitled to it or to any part of it.
Conclusion
- For the reasons I have given, I would dismiss this appeal.
Lord Justice Longmore
- I agree and add a few words on the contentious/non-contentious work issue. It is, as my Lord says, (para 39) surprising to find that there is no authority in point but, to my mind, if there is an order made by a judge after a dispute, for a valuation to take place and for the sum decided on by the valuer to be subsequently paid, the proceedings before the valuer are part and parcel of the contentious proceedings initiated by the claimant before the court and, therefore, constitute contentious rather than non-contentious work. That is not to say the order made by Lawrence Collins J was not a final order. It was a final order in respect of which it was inappropriate to give liberty to apply save perhaps in respect of any further directions to the valuer which might be required. That could be dealt with by the general rules as Lawrence Collins J himself said. But I agree with Henderson J when he says (para 38)
"
the proceedings must in my view be regarded as continuing at least until the relief awarded to the successful party had been ascertained."
The valuation was, as the judge further said
"a necessary step in working out the relief awarded by the court."
- The exercise of valuation is not the same as the conveyance of property by one spouse to another after a matrimonial dispute. I express no view about the assumption made in C v C [1997] 2 FLR 22 that that is non-contentious work. That assumption may have to be re-visited in another case but I do not consider that the answer to that question can determine the answer to the question in the present case.
- I agree that the appeal should be dismissed.
Lord Justice Ward:
- Whatever the position may be with regard to conveyancing done pursuant to an order for a transfer of property under the Matrimonial Causes Act 1973 may be and I think that gives rise to a very tricky question which I would not want to answer without full argument I have no doubt about the answer to the question posed in this appeal as to whether this was contentious or non-contentious business. I agree with Henderson J. and with Longmore L.J. that although the order made by Lawrence Collins J. was a "final order" as a matter of procedural law, the order was not final in any other sense because its effect had yet to be ascertained and no finality could be achieved until after that process of ascertainment had been concluded. The order directing that the shares be sold at a value certified by valuer within 21 days of the valuation being recorded quite obviously required the valuation to be conducted before that sale could take place. I would be inclined to think that until the order of the court has been complied with the proceedings are still in existence and all that has to be done to achieve compliance with the court order is work done in the proceedings. It was certainly done for the purpose of these particular proceedings. So I would find that the work was contentious business.
- The answer to the appeal may, however, lie in the answer to the second point identified by and given by my Lord, Stanley Burnton L.J.. There was only one retainer by the client of his solicitor in this case. The terms of business for that retainer were set out in the letter dated 25th January 2001. The terms prevailed until the retainer was discharged or varied. It was not. Mr Stockler was not entitled to charge more than he had agreed to charge in that letter. He was not entitled to charge an uplift.
- I agree with my Lords and Henderson J. that the costs judge was fully entitled to refuse the amendment.
- I, too, would dismiss the appeal.
