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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 >> Bassett v Sears Tooth (a firm) [2004] EWHC 90014 (Costs) (24 March 2004) URL: http://www.bailii.org/ew/cases/EWHC/Costs/2004/90014.html Cite as: [2004] EWHC 90014 (Costs)

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IN THE HIGH COURT OF JUSTICE
SUPREME COURT COSTS OFFICE

		Clifford's Inn, Fetter Lane London, EC4A 1DQ
		24 March 2004

Master Wright

1. This is a claim brought under Part 8 of the Civil Procedure Rules seeking an order that four bills of costs delivered by the Defendant firm to the Claimant should be assessed pursuant to Section 70 of the Solicitors Act 1974 ("the Act").
2. The Defendant acted for the Claimant in relation to his divorce and his wife's application for ancillary relief. This was high value matrimonial litigation; I am told that the matrimonial home was worth in the region of £3.75 million and Mrs Bassett's original position was that she wanted a lump sum of £2,134,000.
3. In the course of the litigation Sears Tooth rendered periodic bills. It is now conceded that each was an interim statute bill. Until the case went to trial, each of those bills was paid in full by the Claimant shortly after receipt. The matter went to trial in April 2003. The Claimant did very badly. His ex-wife was awarded £1.6 million, a sum higher than she had previously offered in settlement.
4. At a meeting not long after the trial Mr Tooth on behalf of Sears Tooth agreed to await payment of the bill relating to the costs of the trial, and of the costs of an application for permission to appeal against the Judge's decision until the matrimonial home was sold in August 2003. However when the house was sold the Claimant did not pay the last two bills in full.
5. Instead of paying those bills in full, he deducted more than £20,000 from the sums claimed and, in a letter dated 19 August 2003, he wrote to Mr Tooth sending a cheque for £80,000. In the letter he said:

"Rather than writing at length on the numerous matters which over the last 15 months or so have and continue to cause me grave concern, we should meet on your return … You are aware that I am unhappy in the extreme by the manner and approach you have adopted throughout the divorce – things that you said you would do were not done, matters I asked you to resolve were not dealt with and errors were made that reflected badly on me …"

6. On 21 August 2003 Mr Tooth replied in a letter in which he said:

"If the full balance is not paid by 26 August, ie by the date of my return to the office, ie £22,616.95, I shall be serving you with a Statutory Demand and, in the absence of payment within 21 days, issuing bankruptcy proceedings. I am not prepared to discuss this matter further. In our previous discussions I have made my position quite clear. I am frankly appalled at the way you have behaved. I shall be taking steps immediately upon my return. Indeed in my absence a Statutory Demand is being prepared."

7. On 3 September 2003 the Claimant instructed new solicitors, Russell-Cooke, with a view to applying to the court for a detailed assessment of the bills which had been delivered to him by the Defendant. The present Part 8 claim was issued on 1 October 2003. In the meantime on 13 September 2003 the Defendant served a Statutory Demand on him claiming that he owed them the sum of £20,915.90. That Statutory Demand was set aside by consent on 1 December 2003.
8. The Claimant instructed the Defendant Sears Tooth to act as his solicitors in relation to a divorce and ancillary proceedings in about November 2001. On 12 December 2001 the Defendant wrote a "client care" letter to the Claimant.
9. In that letter the Defendant said, under the heading "Legal costs":

"Our firm's charges to you will comprise a charge for work done by our own staff plus the expenses which we incur on your behalf. In addition VAT is payable on the charges for our work and on most of our expenses.

The charge for work done by our own staff will be calculated mainly by reference to the time spent by me and any other solicitors or executive staff who deal with your matter. This will include time spent in meetings with you and others, telephone calls, correspondence, dealing with papers (including considering and preparing documents) and attending court as well as all time spent travelling and waiting for the purpose of your case. A schedule of our current charges is attached to this letter. Our charge rates are reviewed annually on 1 April and we will advise you of any changes as soon as possible after they have been determined.

As mentioned above, we charge for all the expenses incurred in your case in addition to the charge for our own time. Examples (but not an exhaustive list) of such expenses are court fees, the fees of counsel, enquiry agents and expert witnesses, travel costs, expenses paid to non-expert witnesses, courier charges and search fees.

It is always difficult to estimate future costs in any legal dispute, particularly at the outset when we know relatively little about the case. Work may have to be done which is quite unforeseeable at this stage as a result of issues which arise in the case, the strategy of our opponents, the requirements of the court or your own requirements. Any estimates we give are largely based on our experience of other cases. Accordingly any estimates we give are only broad estimates.

You may find it convenient for budgeting purposes to set a limit on the costs and expenses which you incur with us. If you do so, we will not exceed that limit without first obtaining your consent. However, if the limit is reached and you do not consent to it being lifted, your case may be prejudiced as we will be unable to do any further work on your behalf.

In most cases there are likely to be three main issues that require resolution, as follows:

1. Dissolution of the marriage itself

(N.B. This was not relevant to the present dispute)

2. Issues relating to children

(N.B. This was not relevant to the present dispute)

3. Financial and Property issues

These are the issues which are usually the most contentious on separation. However all financial applications commenced in the Principal Registry of the Family Division (where we would usually issue the application) and now all courts are conducted under an exercise called "the Pilot Scheme".

Under the Scheme, on the issue of an application the court fixes a First Appointment, which both parties and their lawyers must attend, at which it decides what the issues in the case are, and provides for each party to disclose relevant documents and information about their financial position to the other. It also usually fixes, as soon as possible after each party has provided that information a further appointment for both parties to attend (called a Financial Dispute Resolution hearing) which is essentially a settlement meeting that takes place in front of the Judge. It is only if that hearing does not result in settlement that the case then proceeds in the normal way with the filing of Affidavits and the listing of the case for trial.

In our experience this new Scheme has enabled cases to settle earlier, with a consequent saving of legal costs. We estimate the costs of dealing with the first stages (dealing with necessary documentation, attending the First Appointment and the subsequent Financial Dispute Resolution hearing) to be in the region of £15,000 to £25,000 plus any disbursements and VAT.

In the normal course of events we will deal with the First Appointment and the Financial Dispute Resolution hearings ourselves without instructing counsel. Where we do so the time spent by us at court for those hearings is charged at 100% more than the usual hourly rate of the staff member who attends. In some cases we may advise that counsel be instructed, in which case our own time for attending court will be charged at the usual rates. Shortly after the Financial Dispute Resolution hearing I will provide you with an additional estimate of our costs to take your matter to trial."

10. The Defendant delivered six bills to the Claimant between the date of that letter and the final bill. They were as follows:

	Bill	Date	Paid	Amount
1	11055	28/2/02	28/2/02	£8,395.00
2	12008	3/4/02	23/4/02	£24,851.25
3	12285	20/9/02	14/10/02	£33,076.25
4	12448	7/1/03	18/1/03	£22,148.75
5	13055	8/5/03		£83,405.75
6	13225	25/7/03		£19,211.20

11. The Claimant is seeking an order for the detailed assessment of bills 3 to 6. Bills 1 and 2 had been paid for more than a year before the Part 8 claim was issued on 1 October 2003 and the Claimant accepts that they cannot be assessed because of the provisions of Section 70(4) of the Act.
12. Since bills 12285 (bill 3) and 12448 (bill 4) have been paid, they can now only be assessed if the Claimant can establish the existence of "special circumstances" for the purposes of Section 70(3) of the Act. As regards bills 13055 (bill 5) and 13225 (bill 6) these bills have not been fully paid and therefore the court has discretion under Section 70(2) of the Act whether to order assessment.
13. The expression "special circumstances" was explained by Lord Esher, Master of the Rolls In re Norman [1886] 16 QBD 673 as follows:

"I think that the legislature has adhered to the view that "special circumstances" may arise from time to time, as to which a Judge is entitled to use his discretion whether a bill of costs is to be taxed, and I think that he may exercise that discretion whether the bill of costs has or has not been paid. Bowen LJ seems to me to be quite right when he says In re Boycott, 29, 571:

"Special circumstances, I think, are those which appear to the Judge so special and exceptional as to justify taxation. I think no court has a right to limit the discretion of another court, though it may lay down principles which are useful as a guide in the exercise of its own discretion."

Therefore even if the bills of costs had been paid, I should not consider myself bound by any hard and fast line: whether a bill is to be taxed, is a matter to be determined by all the facts relating to the bill in each case. Acquiescence does not necessarily deprive the client of his right to taxation."

14. The Claimant has made two witness statements in the course of these Part 8 proceedings. The first is that which accompanies his Part 8 claim form issued on 1 October 2003 and the second is that which is dated 21 November 2003. He also made a witness statement dated 1 October 2003 in support of his application to set aside the Statutory Demand.
15. Mr Raymond Clive Tooth (Mr Tooth) made a witness statement on behalf of the Defendant dated 24 October 2003. He also made a further witness statement on 28 January 2004.
16. Both the Claimant and Mr Tooth attended the hearing of the claim before me on 1 March 2004 and gave oral evidence.
17. I am satisfied from the evidence that was before me at the hearing that after the estimate as to the likely costs which the Claimant would incur which was given in the Defendant's letter of 12 December 2001 (the "client care" letter) the only other written intimation of the future costs which the Claimant would incur before the trial was given in the Defendant's letter of 26 March 2003.
18. In that letter (written two weeks before the trial) Mr Tooth said:

"I am writing regarding the question of costs.

First of all, insofar as counsel's fees are concerned, the brief fee for the medical hearing is £5,000, and for the main hearing £20,000 and refreshers, that is to say from the second day onwards of £3,000 a day, ie £6,000 plus of course VAT, which totals £36,428.

Since my last bill of 7 January 2003 my costs are just over £15,000 ie about £17,675.

I have estimated my further costs, which will of course include the hearing on 31 March as well as the three day hearing to be of the order of about £12,500 plus VAT.

There will be Mr Mark's fees for attending court, probably £2,000.

I therefore do need to be put in funds in the sum of £65,000 because I am personally responsible for counsel's fees.

If anything is unclear, please let me know."

19. It seems that the Claimant did not receive this letter because on 7 April 2003 Mr Tooth wrote to him:

"I refer to my letter of 26 March regarding costs. Would you please let me have a cheque for £65,000 on account of costs."

The next day Mr Tooth wrote again to the Claimant:

"Further to our telephone conversation a few minutes ago when you said that you had not got my letter of 26 March regarding costs, I enclose a copy of the same."

20. The Claimant had paid bills 11005 (bill 1) and 12008 (bill 2) without complaint. With regard to bill 12285 (bill 3) the Claimant wrote to Mr Tooth on 11 October 2002 as follows:

"I have now received a cheque for the facility account and enclose my cheque in settlement of your invoice 20 September – its quantum really surprised me.

For my records I wrote that we met at your office on 6 occasions. With the exception of 2 meetings all the others were for less than 1 hour.

It seems to me that you were running two clients in parallel at the FDR – certainly the morning!

I suppose the lesson for me to learn is to instruct you not to reply to the other side's letters unless absolutely necessary.

I did all the work in putting together the facts on work done at Pelham Place.

Lastly, I do not think I have ever had a long conversation with you on the telephone. You are always under too much pressure!!

I suppose we have to meet to finish the affidavit – I do not want to leave it to the last moment."

21. In his witness statement of 21 November 2003 the Claimant says:

"4. I confirm that following receipt of the bill of the 20^th September 2002 I was astonished by the level of costs which had been incurred by Sears Tooth at that stage. I did speak to Raymond Tooth of Sears Tooth on around the 11^th October 2002. I made it clear to Mr Tooth that I was extremely concerned about the level of costs. Mr Tooth was at pains to assure me that that invoice would be the last large one I would receive.

5. Had Mr Tooth at that stage given me an indication that I was likely to incur costs of a further £80,000 to £100,000 before the matter had completed its final hearing I would have been horrified. It would, of course, have had a significant impact on my view of the case, particularly in terms of the settlement discussion. As it happens however, Mr Tooth was able to assure me that there would be no more large bills and so I was placated."

22. Mr Tooth's account of the Claimant's reaction on receiving bill 3 is set out in paragraphs 2 and 3 of his witness statement dated 28 January 2004. He said that the final sentence of paragraph 4 of the Claimant's witness statement of 21 November 2003 is "completely untrue". He also said:

"As the cheque was paid and the bill not queried I did not take the matter further."

23. Having seen both the Claimant and Mr Tooth give evidence about that conversation I am satisfied that the Claimant was at that stage more concerned with the progress of his case than with the size of the bill but nevertheless I am satisfied that the subject of costs was discussed.
24. I do not consider it at all likely that Mr Tooth gave the Claimant an assurance in the terms alleged by him and I am also satisfied that the Claimant knew that there was a great deal more to be done before the trial. But, on his own evidence, Mr Tooth did not at that stage give the Claimant any intimation about the further costs he would incur.
25. When giving his evidence at the hearing Mr Tooth said that at the Financial Dispute Resolution hearing on 24 July 2002 he had given the Claimant an oral estimate of the further costs which would be involved in going to trial. He said that he gave an oral estimate of £100,000. He said that he had given this estimate at about 12.00 noon when he rejoined the Claimant after he had been attending at the nearby hearing of another client's case.
26. It was pointed out to Mr Tooth by the Claimant's counsel Mr Levey that his attendance note of the hearing on that day does not mention this and that the estimate should have been in writing. I am not satisfied that the estimate was in fact given to the Claimant. This is because Mr Tooth does not mention having given the estimate in his witness statements and also because the Claimant said in paragraph 5 of his witness statement of 21 November 2003 that he would have been horrified if Mr Tooth had given him an indication in October 2002 that he was likely to incur costs of a further £80,000 to £100,000. I accept the Claimant's evidence on this point. It may be that Mr Tooth confused the estimate of costs given to the court as an estimate given to the Claimant. In any case Mr Tooth accepted in evidence that no further advice about future costs was given to the Claimant until March 2003.
27. With regard to bill 6 dated 25 July 2003, Mr Tooth wrote to the Claimant on 7 July 2003:

"Further to my letter of 2 July 2003, I am not having a consultation with Leading Counsel. Therefore his fees will be £5,000 plus VAT.

I should tell you that my costs for leave to appeal herein will be £7,000 plus VAT. There is also the transcript writer's fees which I am ascertaining in relation to the judgment."

28. The bill when delivered claimed £9,000 for counsel's fees. The explanation given by the Defendant was that there had been an oral hearing of the request for permission to appeal and that this was unusual and had not been anticipated. Accordingly Counsel's clerk had sought an increased fee of £9,000. The bill shows that the fee of £9,000 had not been paid.
29. Mr Post submitted that the onus is on the client to persuade the court that bills of costs should be the subject of detailed assessment. I accept that submission.
30. Mr Levey submitted that there were a number of instances of "special circumstances" which could justify the court in exercising its discretion to order detailed assessment of bills 3 and 4. In addition to the failure by the Defendant to provide costs estimates (to which I will refer below) he submitted that there had been:

i. a failure to advise the Claimant about the consequences of paying the bills;

ii. a failure to delegate;

iii. other instances of overcharging such as Mr Tooth attending the Financial Dispute hearing representing another client at court on the same day and charging a 100% uplift for hearings without counsel.

31. It seems to me that a failure to delegate may or may not be reasonable depending on the circumstances of each case. It may well be that in this case delegation on a greater scale would not have led to any significant decrease in the overall fees and may have led to an increase. However I do not consider that in itself it amounts to special circumstances so far as these bills are concerned. It may be a matter to be revisited at a detailed assessment if the Claimant wishes to pursue it.
32. I was satisfied by the evidence given at the hearing that the Claimant appeared to have been charged fairly for the time spent at the Financial Dispute Resolution hearing and that the Defendant had apportioned the time between him and the other client appropriately. This did not of itself indicate overcharging.
33. I was also satisfied by the evidence given at the hearing that the only court appearance which took place during the period covered by bills 3 and 4 (where the Claimant must establish special circumstances) was the Financial Dispute Resolution hearing on 24 July 2002 at which counsel represented the Claimant and the 100% uplift was apparently not charged for that reason.
34. With regard to the alleged failure of the Defendant to advise the Claimant about the consequences of paying the bills, Mr Tooth candidly accepted at the hearing that it did not cross his mind to warn Mr Bassett about these when he was asking for payment. However there is no dispute that these were interim statute bills. Each of them has endorsed upon it information regarding the rights of the client to have the solicitors' charges reviewed by the court and expressly refers to Sections 70, 71 and 72 of the Act. I do not consider that the Defendant was obliged to give any further warning about the consequences of paying the bills and therefore this does not amount, in my judgment, to special circumstances.
35. The Claimant also relies upon the alleged failure of the Defendant to provide costs estimates as amounting to special circumstances in respect of bills 3 and 4. I am satisfied (as stated in paragraphs 17 to 26 above) that the only intimations about future costs which were given to the Claimant which are relevant to bills 3 and 4 are contained in the Defendant's letter of 12 December 2001 (the "client care" letter). The only other intimations of future costs given to the Claimant were the letter of 26 March 2003 (see paragraph 17 above) and the letter of 7 July 2003 (see paragraph 27).
36. Mr Post submitted that there are a number of explanations as to why no further intimations of future costs were required. These were firstly that the Claimant had knowledge and experience of litigation and was a highly experienced expert witness. He was not, Mr Post suggested, an unsophisticated client unaware of the work that was being done for him.
37. At the hearing the Claimant said in evidence that he was a chartered surveyor and had worked with James Long Wootton for 27 years ultimately as senior partner and now as a consultant. He said that he had not appeared as an expert witness and that the only other litigation in which he had been involved was the divorce proceedings in respect of his first marriage which had ended in 1994. The Defendant firm (by Mr Tooth) had acted for him in that divorce. He said that in that case the costs had been less than £20,000 and the matter did not proceed to a trial. He said he had no other experience of litigation.
38. Mr Post submitted that from his previous experience of instructing the Defendant firm, the Claimant was fully aware of Mr Tooth's approach to litigation and way of working. He had failed to raise substantial protests about the bills at the time he received them and paid them and had failed to point to particular items of overcharge in relation to the bills.
39. The Claimant said in evidence at the hearing that when he received bill 4 dated 7 January 2003 he paid it because he felt intimidated by Mr Tooth and felt that if he challenged it or left it unpaid this would prejudice him in the eyes of Mr Tooth.
40. In his witness statement of 21 November 2003 the Claimant said, in paragraph 7:

"At no stage during the litigation did I leave Sears Tooth, despite Mr Tooth's approach to this matter (which I found unsympathetic to say the least, and at times, extremely insulting). Mr Tooth came highly recommended to me and I had instructed him in relation to a previous divorce, although that was much less complicated and less acrimonious than this one. I was concerned that if I went elsewhere I would only increase my costs further. By the time I reached September 2002 I felt I was too far down the road towards the conclusion that, realistically, it was too late to do anything other than carry on with that firm …"

41. Mr Post referred to the judgment of Mr Martin QC (sitting as a Deputy Judge of the High Court) in Winchester Commodities Limited v R D Black & Company No. HC 1999 00894 dated 16 July 1999. He contended that this case was on all fours with it. Here, as in that case, although the sums charged are substantial, that was a consequence of the scale of the litigation and the client's decision to instruct solicitors he knew would be expensive: it was the client's deliberate and conscious decision to instruct the senior partner of a leading matrimonial firm to conduct the proceedings. Here as in that case, the issues raised in relation to these costs were relatively minor in the context of the litigation as a whole. He submitted that just as in the Winchester case it should be found that no special circumstances to justify assessment of these bills exist.
42. That submission fails, I think, to take into account the fact that the new Practice Rule 15 and the Solicitors Costs Information and Client Care Code 1999 came into force on 3 September 1999. They replace Rule 15 of the Solicitors Practice Rules 1990 and the costs information requirements previously contained in the written professional standards.
43. Practice Rule 15 provides:

"Solicitors shall:

(a) give information about costs and other matters, and

(b) operate a complaints handling procedure,

in accordance with a Solicitors' Costs Information and Client Care Code made from time to time by the Council of the Law Society with the concurrence of the Master of the Rolls, but subject to the notes."

44. Note (i) provides:

"A serious breach of the Code, or persistent breaches of a material nature, will be a breach of the rule, and may also be evidence of inadequate professional services under Section 37A of the Solicitors Act 1974."

45. The Solicitors' Costs Information and Client Care Code ("the Code") introduced by Practice Rule 15 provides at paragraph 13.02, 1(b):

"The main object of the Code is to make sure that clients are given the information they need to understand what is happening generally and in particular on:

(i) the cost of legal services both at the outset and as the matter progresses …"

46. The Code goes on to provide at paragraph 13.02, 1(d):

"It is good practice to record in writing:

(i) all information required by the Code including all decisions relating to costs and the arrangements for updating costs information; and

(ii) the reasons why the information required by the Code has not been given in a particular case."

47. Paragraph 3(c) of the Code says:

"The information required by paragraphs 4 and 5 of the Code should be given to a client at the outset of, and at appropriate stages throughout the matter. All information given orally should be confirmed in writing to the client as soon as possible."

48. The information required by paragraphs 4 and 5 of the Code which seems to me to be relevant to the issue as to whether or not in this case, the Code has been followed is set out in paragraph 4 where it is stated:

"Advance costs information – general

The overall costs

(a) The solicitor should give the client the best information possible about the likely overall costs, including a breakdown between fees, VAT and disbursements."

49. Paragraph 6 of the Code states:

"Updating costs information

The solicitor should keep the client properly informed about costs as a matter progresses. In particular the solicitor should:

(a) tell the client, unless otherwise agreed, how much the costs are at regular intervals (at least every six months) and in appropriate cases deliver interim bills at agreed intervals;

(b) explain to the client (and confirm in writing) any changed circumstances which will, or which are likely to, affect the amount of costs, the degree of risk involved, or the cost benefit to the client of continuing with the matter;

(c) inform the client in writing as soon as it appears that a costs estimate or agreed upper limit will be exceeded; and

(d) …. (not relevant)"

50. Paragraph 13.03 of the Code states:

"3. Oral estimates should be confirmed in writing and clients should be informed immediately it appears that the estimate will be or is likely to be exceeded. In most cases this should happen before undertaking work that exceeds the estimate. Solicitors should not wait until submitting the bill of costs. The office for the Supervision of Solicitors deals with many complaints that have arisen simply because the solicitor does not have a system of tracking costs, and estimates are exceeded without the client's authority."

51. I am satisfied (as mentioned above) that the only information about future costs given to the client and relevant to bills 3 and 4 are contained in the Defendant's letter of 12 December 2001. In that letter the Defendant wrote:

"We estimate the costs of dealing with the first stages (dealing with necessary documentation, attending the First Appointment and the subsequent Financial Dispute Resolution hearing) to be in the region of £15,000 to £25,000 plus any disbursements and VAT."

52. The estimate of £15,000 to £25,000 plus any disbursements and VAT had almost been reached when bill 2 dated 3 April 2002 was delivered. Thereafter up to the conclusion of the Financial Dispute Resolution hearing a further £38,000 plus disbursements and VAT is charged in bills 3 and 4. This is £37,600 in excess of the estimate. In my judgment this is a serious breach of the Code and is accordingly a breach of the Practice Rule.
53. In Leigh v Michelin Tyre Plc [2003] EWCA Civ 1766 Lord Justice Dyson said at paragraph 22:

"Apart perhaps from cases such as the present where a solicitor acts for a client who makes it clear that he or she does not require such estimates, it is also part of a solicitor's ordinary professional duty to provide the client with an estimate of future costs."

54. I do not accept Mr Post's submission that there had been no need to give the Claimant estimates of the future likely costs because of his experience of litigation and his experience of the manner in which the solicitors carried out their work in his previous divorce. Nor do I accept that the Claimant, having (as Mr Post submitted) paid the bills without pointing to particular items of overcharge or substantial protest, did not need to be provided with such estimates.
55. Whether or not the Claimant felt intimidated by Mr Tooth, it is common for clients to pay solicitor's bills without demur or serious objection for fear that the solicitor will refuse to continue to act for them thereby prejudicing their case. I believe that that is what happened here.
56. The Defendant could have protected its position by complying with the provisions as to estimates given in the Code. It failed to do so and the failure was a serious one. It is my judgment that the Winchester case is not on all fours with this case and that the Code now applies as a rule of law which in this case has been breached. That in my judgment amounts to special circumstances such as to justify the court in making an order for the detailed assessment of bills 3 and 4.
57. With regard to bills 5 and 6, (the bills for the trial and for the application for permission to appeal) these bills have not been fully paid and therefore the court has discretion under Section 70(2) of the Act whether to order detailed assessment.
58. In what was only the second letter intimating the likely future costs, Mr Tooth wrote to the Claimant on 26 March 2003. The letter was written two weeks before the trial although the Claimant stated that he did not receive it and a copy had to be sent to him (see paragraphs 17 to 19 above). The Defendant estimated its own profit costs since the last bill at £30,175. It is not clear from the letter whether this includes VAT. As already mentioned, the Claimant did not pay the £65,000 requested on account. After the trial the Defendant submitted bill 5 which (inter alia) claims £34,000 for profit costs plus VAT. There then followed the arrangement whereby Mr Tooth agreed to wait for payment of bill 5 and the payment of the costs being incurred in the application for permission to appeal until the Claimant's house sale was completed.
59. It has already been noted that Mr Tooth wrote to the Claimant on 7 July 2003 giving an estimate of costs for the application for permission to appeal (paragraph 27 above). As stated in paragraph 28 above counsel's fees claimed in the bill amount to £9,000 whereas the letter of 7 July stated that they would be £5,000.
60. I do not accept that the Claimant is bound by the arrangement he made with Mr Tooth so as to prevent him from asking for an assessment of bills 5 and 6. When asked at the hearing whether he would have agreed to defer payment of the bills if the Claimant had told him that he intended to contest them, Mr Tooth replied:

"I might have but we would have had a meeting. I agreed in good faith."

61. In my judgment that shows that Mr Tooth did not regard the agreement as being anything other than an act of kindness or common sense and never intended it to have the legal consequence of debarring the Claimant from asking for an assessment. The fact that the Defendant later offered to agree to the detailed assessment of bill 6 on terms does in my judgment bear this out.
62. In my judgment the court ought to order detailed assessment of bills 5 and 6. The estimate of the costs of the trial was given at far too late a stage bearing in mind that no estimate other than that given in the client care letter of 12 December 2001 had been given at all.
63. So far as bill 6 is concerned, the Defendant has offered to agree to the detailed assessment of that bill provided the balance due to them is paid into court. In my judgment there ought to be a detailed assessment of that bill if for no other reason than that the Claimant was informed that counsel's fees would be £5,000 whereas the bill as delivered claims £9,000. The Claimant is entitled to a proper explanation of this.
64. If the parties do not attend when this judgment is handed down, I will fix another date at which the submissions about costs and any request for permission to appeal will be heard together with submissions as to the wording of the Order to be made and the conduct of the detailed assessment of the bills. If the parties do attend, I will hear those submissions then.