COURT ALLOWS ASSESSMENT OF SOLICITOR’S BILLS OUTSIDE 12 MONTHS: PUBLIC SPIRITED LITIGATION DOES NOT AMOUNT TO SPECIAL CIRCUMSTANCES

I am grateful to Mark Carlisle  for sending me a copy of the judgment of Master Brown in Erlam -v- Edmonds Marshall McMahon Limited (SCCO – 19th November 2020 – a copy available here Erlam v Edmonds Marshall McMahon Ltd – Approved Judgment – 19.11.2020 V4).  It raises some important points about solicitor and own client billing.

THE CASE

The claimants instructed the defendant firm of solicitors in relation to an election petition in relation to a mayoral election in Tower Hamlets.  The solicitors sought to recover costs and some bills were paid from the realisation of assets.  A dispute occurred over the costs being incurred and the claimant sought assessment of the bills that had been rendered.

BILLS PAID MORE THAN 12 MONTHS PRIOR TO ISSUE: SPECIAL CIRCUMSTANCES

Some of the bills had been paid (out of the realisation of assets) more than 12 months prior to the issue of proceedings. An issue arose as to whether these were covered by s. 70(3) and “special circumstances” were required for those costs to be subject to an assessment.

The Master found that special circumstances existed. However the fact that the underlying proceedings were public spirited did not, in itself, amount to special circumstances.

“I am not persuaded that the fact that Mr Erlam appears to have to pursued the underlying proceedings out of a sense of public duty changes the nature of the arrangements as between the solicitor and the client. I am not satisfied that that amounts to a special circumstance. There are other matters that have been addressed in detail, but I consider are generally supportive of the conclusions reached.”

BILLS RENDERED WITHIN 12 MONTHS

The Master did not accept an argument that bills rendered within 12 months should not be subject to assessment.

It is, in my experience, relatively rare for the court to refuse an assessment for bills which are challenged by way of an application within 12 months of delivery. I do not think in any event any delay is a point which should weigh substantially against the clients in relation to this matter. It is said by Dr Friston that, as early as August/September 2017, Mr Erlam was raising points about the bills; in particular in an email of 22 August 2017, he wrote:
“I refer you to my earlier statement, stating clearly that our instructions are that NO further chargeable work must be done without our express prior permission. This is a very reasonable condition, especially given the way the bill has escalated astronomical levels and now, neither proportionate nor reasonable.”

125. Further, Dr Friston relies on a letter from the Claimant’s current representatives in March/April 2018 indicating the prospect of a challenge. Dr Friston says that having access to independent advice is all more reason why an application should have been made
earlier. I take these matters into account. The other point to be made is that the solicitors, the Defendants, are on notice of a concern about the bills, this having been raised at a relatively early stage in August/ September and they were on notice of an application, or the potential for an application, in April. That reduces the prejudice to them caused by the delay.

126. In any event, it seems to me, taking into account all those circumstances, that I should exercise my discretion in favour of an assessment in relation to the bills, including those caught by section 70(3).