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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 >> Melvin v England Palmer (A Firm) [2004] EWHC 90019 (Costs) (27 January 2004) URL: http://www.bailii.org/ew/cases/EWHC/Costs/2004/90019.html Cite as: [2004] EWHC 90019 (Costs)

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No.2 of 2004

Gillian Melvin v England Palmer (A Firm)
27 January 2004
Mr Justice Evans-Lombe (Sitting with Assessors)

A dispute into their respective interests in a property in Richmond arose between the Appellant and her former partner a Mr C, which led to proceedings listed for a two day trial before Master Price in the Chancery Division in early February 2001. Mr Lawrence Jones of counsel was instructed on behalf of the Appellant who was the Defendant to those proceedings. After a short opening by the Claimant’s counsel the proceedings were adjourned to enable negotiations to take place, as a result of which a compromise was reached under which the Appellant was to buy out her former partner’s interest in the disputed property.

The Appellant subsequently challenged four bills rendered to her by the Defendants who were her solicitors in the preceding action. The principal issue before the Costs Judge, at any event that was taken further, was the question of counsel’s fees for the hearing in February and the preliminary work leading up to it. The Defendants agreed with counsel’s clerk an inclusive fee of £9,000, but when at the assessment this was challenged neither solicitors nor counsel was able to produce the skeleton argument or written submissions for which payment was partly claimed. Counsel had agreed a reduction of £500 in his fee, presumably to take account of the fact that there was no second hearing day.

The Costs Judge ordered counsel to produce the skeleton and written submissions and all the disks upon which they had apparently been put, but counsel was unable to do so. After evidence from Mr Palmer, and reading the attendance notes, the Costs Judge however decided that on the balance of probabilities the work had been properly done, and that he was not prepared to make any reduction in counsel’s fee. The result of that finding and his other findings was that the Costs Judge ordered the Claimant to pay the costs of the detailed assessment proceedings, and these were duly assessed by him, so that there was a balance still payable by the Claimant to the Defendants despite a substantial payment made by her on account.

The Costs Judge refused permission to appeal, and the Claimant applied on the papers to a single Judge for permission to appeal, and for a stay of the enforcement proceedings. Mr Justice Pumfrey in May 2003 granted the stay, but adjourned to the substantive hearing the application for permission to appeal.

The Appellant, through her solicitor, sought at the hearing to widen the scope of the appeal to suggest that counsel had been ill prepared for the hearing in February 2001, and ought to receive nothing like the figure of £8,500, but maintained her objection to the Costs Judges’ decision on the basis that the burden of proof was upon the solicitor and/or counsel to produce the necessary evidence, this evidence had not been produced and therefore counsel was not entitled to his full fee.

The Judge carefully considered the documents which underlay the Costs Judges’ decision to find in favour of the Defendant solicitors, and could find no evidence to suggest that the Costs Judge had misdirected himself, and accordingly, following the decision of Mr Justice Buckley in Sally Mealing-McLeod v The Common Professional Examination Board [2000] 2 Costs LR 223 there were no grounds for interfering with the Costs Judges’ decision, and accordingly the application for permission to appeal was refused.