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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Brown v Edwards [2001] EWCA Civ 1617 (18 October 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1617.html Cite as: [2001] EWCA Civ 1617

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION TO RESTORE THE MATTER OF COSTS

		Royal Courts of Justice Strand London WC2 Thursday, 18th October 2001

1. LORD JUSTICE SEDLEY: On 15th June 2001 Mr Brown came before me seeking permission to appeal on a series of issues which arose out of the adverse judgment given by His Honour Judge Hallgarten QC at a hearing in January 2001 of Mr Brown's appeal. That appeal was against the adverse finding of a district judge in an action brought by Mr Brown in person against his former solicitors. There is no need for me to go into any detail because it can be found in my judgment on that occasion, which is transcribed.
2. What remained over from the hearing in June was the question of costs. I was troubled by what Mr Brown told me about the summary assessment of costs before His Honour Judge Hallgarten. What had happened at the end of the appeal in broad terms was that Mr Phipps, counsel for the defendants Alan Edwards & Co, had applied for summary assessment of costs and had advanced a suitably drawn bill in support of the application. The figure on the bill came to a little over £12,000. Mr Phipps orally reduced it to a little under £12,000 in making his application. The judge awarded him £8,000, a reduction of almost one-third. Mr Brown, however, told me this had been done without any reference to him. I was troubled by this and adjourned the matter so that a transcript of the dialogue on costs could be obtained at public expense and so that Mr Brown, having taken advice on it, could come back if he wished before this court. He has come back before the court. The purpose that I had in mind was not only that he should be able to be advised, if necessary, as to whether he had been denied his right to be heard but also whether the bill of costs as drawn and as proved was capable of being any further reduced on even the most benign hearing, whether on summary or on detailed assessment.
3. What has happened since then is that on 30th July Alan Edwards & Co applied in the High Court for a bankruptcy order upon Mr Brown's failure to pay the liquidated sum of £8,000. On 2nd August Mr Brown applied to the Central London County Court for a stay on the enforcement of the costs order which was the foundation of the bankruptcy petition. He obtained an order nisi from Mr Recorder Powell QC but on 8th August, upon an inter partes hearing, the recorder discharged the order. Nevertheless, on 17th September the bankruptcy petition was itself adjourned to 4th October precisely because of the pendency of Mr Brown's application or re-application to this court. It was further adjourned on 4th October for the same reason. It therefore stands adjourned pending my decision today, and that seems to me entirely appropriate.
4. Having had the assistance of Mr Phipps' submissions for Alan Edwards & Co as well as Mr Brown's submissions, it is clear to me that Judge Hallgarten cut a corner in dealing with costs. On reading the transcript one can see how and why it occurred. Although Mr Phipps was applying for summary assessment of costs, Mr Brown was extremely exercised by the fact that his appeal had failed and when he intervened he did so not in order to address the question of costs but to address whether his appeal ought, on its merits, to have failed. Even though in the course of this Judge Hallgarten is recorded as saying, "Let us look at these figures," and then after a further intervention by Mr Brown on the merits of the case, saying "I think if I give you two-thirds of that figure you would be well pleased," it is clear that Mr Brown at no point was expressly invited into the discussion of the amount of costs either by the judge or, as arguably should have happened, by counsel reminding the judge that he needed to hear Mr Brown before coming to a conclusion.
5. Such a failure of due process is arguably justiciable and appealable. If the matter ended there it would be a case for permission to appeal. I would go further and say that in many cases - perhaps most cases - this court can be expected on appeal not to concern itself with what the outcome might have been, and whether it might have been any different had the party who was denied the chance to speak been herad. But this case is really quite unusual. The risk that Mr Brown faces if he succeeds is that he will end up being ordered to pay even more than he has already been ordered to pay.
6. I approach the question of whether I should or should not grant permission to appeal on the basis which Mr Brown has established before me today, not by asking what might be the outcome but by asking whether or not it is a certainty that upon a fresh summary assessment, having heard all Mr Brown wished to say, or upon a detailed assessment, it is inevitable that more than £8,000 would be awarded. If that is the case then no ends of justice are served by giving permission to appeal because the only result of an appeal could be that Mr Brown ends up having to pay even more than the round figure to which this bill of costs was arbitrarily pruned down by the judge.
7. Mr Brown made two points about this. First, he said that it has been admitted in the bankruptcy proceedings that the bill is arguably less than £8,000, properly appraised. Secondly, he said that there is at least one claim in the bill which is so far fetched as to be fraudulent and should destroy any entitlement to recover a penny under the bill.
8. I will deal with these in turn. So far as the concession is concerned which is alleged to have been made, it was, as Mr Phipps tells me (and I accept this because it is the only intelligible explanation of such a concession) that it could even be assumed for the purposes of the bankruptcy petition that the bill might be on assessment less than £8,000 without disturbing the success of the petition. Nowhere is there or would there be expected to be a formal concession that the bill is, in truth, less than £8,000 and no such concession was, in my judgment, being made. The question remains for me whether, on any possible view, the bill could come down below £8,000.
9. The second point relates an item of £977.50 under the cross-head "Attendances on defendant and solicitors indemnity fund." The item is "Three lengthy reports (8.5 hours) at £115 per hour." The amount of £115 is the fee earner's rate with which, in itself, Mr Brown does not take issue and which I can say is by no means abnormal in such a firm as this. It is with the total of 8.5 hours spent on three lengthy reports he has never seen, either in form or in substance, that Mr Brown takes issue. He submits that it is a patent fabrication. If it were not he would have been shown the reports or the attendance notes. He submits that it is a fabrication that ought to disentitle Alan Edwards & Co to recover anything. These reports, it is manifest from the bill itself, are reports made, as has to be done, to the Solicitors Indemnity Fund about the progress of the case. I, too, am surprised that time totalling a working day should have been taken up on such reports assuming, as I do, they are probably telephone reports backed, as they would have to be on a detailed assessment, by attendance notes demonstrating that they were a proper expenditure of time.
10. I do not accept for a moment that this is, on the face of it, a fraudulent claim. It is perfectly possible that it is an inflated claim in the sense that upon a detailed assessment that amount of time spent reporting to the solicitors indemnity fund would not be held to be reasonable or justified. I propose to look at this bill on the footing that a very large proportion - I am going to say £800 of that item of £977.50 might not be recoverable.
11. I turn the page to another item which catches my eye, though Mr Brown had not addressed it. Under the cross-head "Attendance on documents" there is the sum of £1,702 allocated to 14.8 hours at £115 per hour "(to include instructing counsel)". Let me assume that this too is contestable and subtract £700 which is the most that could conceivably be subtracted upon a detailed assessment. My eye travels down to the cross-head "Attendance at one day appeal hearing (estimate)". This includes two items - £920 for 8 hours' attendance at £115 per hour and £517.50 for 4.5 hours travel and waiting, again at £115 per hour. That might possibly be considered excessive upon an assessment. I take off the most I could imagine coming off which is £500. There is then the other item to which Mr Brown has directed his attention - counsel's fees - which include £2,500 as the fee for the brief on the County Court appeal which lasted a day. Mr Brown has said - with a directness which is refreshingly able to be used by a litigant in person and exceeds the niceties that members of the Bar would use towards one another, and it is all to the good that that is so - that Mr Phipps is not worth and does not command such a sum. Mr Phipps will not be offended if I make the assumption against him that that is right, but I cannot believe that a case of this difficulty, because it was not an easy case, would have commanded in junior counsel of Mr Phipps' call a fee of less than £1,500. I prune another £1,000 off the bill notionally for that.
12. Adding up those notional maximum prunings, they come to £3,000. There is a further amount approaching £500 for VAT which Mr Phipps has accepted today should not have been claimed in the bill. That, too, will come off. It still means that it is impossible - and I use that word advisedly - on any conceivable review of costs that it could come below £8,000.
13. In those circumstances the highway upon which Mr Brown wants and needs my permission to embark is for him a highway to nowhere. There is no point in shutting one's eyes to this. I would be doing him no favour if I gave him permission to appeal. At worst, I would be involving him in a further very large bill of costs if my prognostications proved wrong and the appeal failed which is possible - and failed on the very grounds I have spelt out mathematically. Even if his appeal were to succeed so that as a litigant in person he could recover the very modest costs that litigants in person recover in these proceedings, it would not get a penny off the bill of costs. Its inevitable result would be an assessment of one sort or another that resulted in the elevationof the total amount above £8,000 which he has so far been ordered to pay. That would not be doing him a favour either.
14. In those circumstances, it seems to me that in spite of what appears to be the strongly arguable error - a failure of due process, understandable though it was in the circumstances - in not hearing Mr Brown on costs, this is one of the rare cases in which it would be wrong to grant permission to appeal. It would be doing the applicant Mr Brown more harm than good whatever the outcome.
15. For those reasons, which I hope he understands, I refuse Mr Brown permission to appeal on costs.
Order: Application dismissed