[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE]
	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 >> Franklin v Your Lawyers Ltd [2025] EWHC 984 (SCCO) (22 April 2025) URL: https://www.bailii.org/ew/cases/EWHC/Costs/2025/984.html Cite as: [2025] EWHC 984 (SCCO)

[New search] [Printable PDF version] [Help]

IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE

		Thomas More Building, Royal Courts of Justice Strand, London, WC2A 2LL
		22/04/2025

This judgment was handed down remotely at 10.30am on [date] by circulation to the parties or their representatives by e-mail and by release to the National Archives. ............................. ACTING SENIOR COSTS JUDGE ROWLEY

Acting Senior Costs Judge Rowley:

1. On 15 November 2018 the claimant sustained personal injuries as a result of an accident at work. He instructed the defendant to act on his behalf and the claim was successfully brought to a conclusion on 14 December 2020 by way of a settlement.
2. The defendant did not provide the claimant with a final invoice in respect of the costs of bringing that claim. Consequently, when the claimant instructed Mr James Green of JG solicitors to consider the sums he had been charged by the defendant, the claimant needed a final statutory bill in order to consider his options.
3. On 14 August 2024 Mr Green wrote to the defendant requesting that a Final Statute Bill was delivered to him on behalf of the claimant. An authority was enclosed to confirm those instructions. Under the heading "Time Frame" Mr Green wrote:

"We would be grateful if the Final Statute Bill could be delivered to us within 14 days of the date of this letter, i.e. before 4pm on 28/08/2024."

4. On 27 August 2024 Matthew Plemper, who is described as the senior manager at the defendant, wrote to Mr Green by email to say that he could not respond to Mr Green's letter until such time as he had received "a properly signed form of authority".
5. The original authority contained an electronic signature and Mr Green explained to the claimant that an authority with a handwritten signature had been requested by the defendant. That authority was signed by the claimant on 10 September 2024 and it was emailed to the defendant on 25 September 2024. In that email a request was made in the same terms as Mr Green had set out in his letter of 14 August 2024, save that the delivery date had moved to 9 October 2024.
6. There was no response from Mr Plemper to that email and a further letter was sent to him on 15 October 2024. It rehearsed the correspondence to that point and then stated that:

"We would be grateful if the bill could be delivered to us by 4pm on the seventh day from the date of this letter (i.e. 22.10.2024). Thereafter your former client has instructed us to make an application pursuant to s68(1) of the Solicitors Act 1974 to obtain an order for delivery of his final statute bill."

7. There was no response to this letter either and the threatened Part 8 application for delivery of the bill was issued on 30 October 2024. A Final Statute Bill was delivered by the defendant to the claimant on 10 December 2024.
8. In my experience, where this sort of history of events has occurred, it is invariably the case that the parties either reach an agreement on the defendant paying the claimant's solicitors' costs or there is an agreement to paying them in principle and there is then an assessment of the quantum which could not be agreed.
9. However in this case, the defendant says that not only should the claimant not receive any costs for the work done prior to and post commencement of proceedings but that, in fact, the claimant ought to pay the defendant's costs. As a fallback position, there should be no order as to costs.
10. Upon commencement of proceedings, the court listed this case for a directions hearing on 6 January 2025. Unfortunately, I was unable to hear this case on that date and it was relisted for 4 February 2025. For reasons which are in issue, the hearing regarding the question of the costs of proceedings could not be dealt with at that hearing either and therefore a two-hour hearing was listed for 20 March 2025. On that date, the parties' detailed submissions by counsel took more than the two hours allotted and as such I had to reserve judgment. I indicated to the parties that whatever decision I came to in respect of the order for costs, any quantification required would, at least in the first instance, be left to the parties to resolve if possible without any further hearing.
11. The court's discretion as to the award of costs is set out in CPR 44.2. The general rule is that "costs follow the event" or, in other words, the unsuccessful party pays the successful party's costs. The court can of course make a different order and one of the circumstances the court will have regard to when considering whether to make a different order is the conduct of the parties. In a nutshell, the claimant says the costs should follow the event in the usual way and the defendant says that I should make some other order because of issues of conduct.
12. Mr Mason, who appeared for the defendant, described this as being a paradigm case for making some other order and organised his submissions into three categories. The first category concerned the claimant's conduct prior to the commencement of proceedings and in particular, Mr Mason submitted, with regard to the Practice Direction – Pre-Action Conduct and Protocols.
13. Paragraph 3 of this Practice Direction states that, before commencing proceedings, the court will expect the parties to exchange sufficient information for them, amongst other things, to understand each other's position, make decisions about how to proceed and try to settle those issues without proceedings.
14. Paragraph 6 of the Practice Direction refers to the claimant writing to the defendant with concise details of the claim and the defendant responding within a reasonable time which is described as being 14 days in a straightforward case and no more than three months in a very complex one.
15. Paragraph 8 of the Practice Direction states that litigation should be a last resort.
16. Mr Mason submitted that the original letter written by Mr Green and the email enclosing the second authority did not give any indication that litigation would follow if the requests were ignored. The language of being grateful et cetera did not suggest that litigation would follow either. Consequently, the only indication of impending litigation was the seven day time limit set out in Mr Green's letter of 15 October 2024 which was a very short deadline and, in Mr Mason's submission, did not give anyone a chance to deal with the matter in the seven days allowed. Mr Mason also contrasted the deadline with the length of time the claimant's solicitors took to produce the so-called "wet ink" signature and indeed that it took more than a week from the date of signature before it was provided to the defendant.
17. It was the defendant's case that, rather than litigation being the last resort, the claimant was seeking to take it as the first option since the whole purpose of these proceedings was the pursuit of costs.
18. Witness statements by Mr Green and Mr Plemper were produced for the purposes of the costs of these proceedings. (The first witness statement of each may be said to relate to the question of delivery of the bill, but the further witness statements squarely relate to the question of costs.)
19. At paragraph 11 of his second witness statement, Mr Plemper said this:

"Importantly, I have now had the opportunity to consider the defendant's past dealings with the claimant's solicitors and have located 10 other cases where the claimant's solicitors have written to the defendant requesting a final statute bill on behalf of other former clients of the defendant. In all 10 occasions, the defendant provided to the claimant's solicitors a final statute bill without the need to issue proceedings."

20. In his third witness statement, Mr Plemper produced a table regarding those 10 cases – seemingly, as a direct result of a comment I made at the February hearing about the broad nature of paragraph 11 of Mr Plemper's second witness statement. The table (in the third witness statement) indicated that from the date the final statute bill was requested to the date that it was provided, a period of between 14 and 28 days had elapsed in each case save for bills produced in respect of a Ms Edwards who was unlucky enough to have had two injury claims. Mr Green's second statement also referred to the claims of Ms Edwards along with a Mr Shaw and by cross referring Mr Green's evidence with Mr Plemper's, Mr Simpson, who appeared for the claimant, was able to submit that the column in the table which recorded the date the final statute bill had been requested was the equivalent of the first letter in this case. In other words, the request was supported by an authority with the sort of electronic signature which had been objected to in this case.
21. Mr Mason asked me to draw the conclusion from Mr Plemper's evidence that whenever the claimant's solicitors had sought a final statute bill from the defendant, it had been produced without requiring any proceedings. In the light of this, the claimant, who was inevitably in control of whether litigation is commenced or not, could not be said to be acting reasonably in commencing proceedings after a single 7 day letter. This could not be in compliance with the pre-action protocol and that submission echoed comments in Mr Plemper's witness evidence.
22. Mr Simpson drew different conclusions from Mr Plemper's evidence. In his submission, the 14 to 28 day period for production of the final statute bill (and even the 46 day period in Edwards) was considerably shorter than the 77 days taken to produce the bill from the first letter of Mr Green in this case. In order to compare apples with apples, Mr Simpson submitted that the first letter had to be used as the comparison to Mr Plemper's table. But even if the second letter was used, there was still a 35 day period which, other than in the Edwards cases, was longer than previous experience had shown was required. Mr Simpson referred to a statement in Mr Green's evidence that it was not uncommon for solicitors who had established a pattern of behaviour to decide to change that behaviour without informing Mr Green, in any event. Consequently, the fact that bills had previously been produced without litigation was no guarantee of future performance in this fashion.
23. Moreover, Mr Simpson pointed to the fact that once proceedings had been commenced, there was still a further 41 days before the final statute bill had been provided.
24. It seemed to me that a yet further inference could be drawn from Mr Plemper's table. Whenever Mr Green had written on behalf of a former client to request a final statute bill, such a bill had been prepared. Therefore, even if there was some suggestion of a difficulty with the authority, any such difficulty on the other cases had obviously been clarified so that a final statute bill had been delivered. On that basis, there was no obvious reason why the production of a final statute bill was not put in train following receipt of the first letter. Based upon Mr Plemper's table, the chances were that the bill would have been produced by the time the "wet ink" authority was provided. Even if that course of action had only taken place from the second request on 25 September, it was still likely that the bill would have been produced by the time that the seven day letter was received. Even if it had not been completed by then, it would appear that the bill would have been produced shortly afterwards based on the usual time period.
25. However, what was in the defendant's mind remains a mystery since Mr Plemper has not said anything in any of his three witness statements about why no response was given to Mr Green following receipt of either the email of 25 September or the letter of 15 October.
26. In my judgment, the seven day letter has to be seen in the context of the previous two requests. I do not accept Mr Mason's argument that if the letter is written politely and does not demand the document without threatening court proceedings, the potential for litigation is not in the background. The defendant as a firm of solicitors ought to appreciate that more than any other defendant. There having been no substantive response to two letters requesting the bill, it seems to me that a seven day letter was entirely sufficient. I would have come to this conclusion in any event, but as Mr Simpson was able to demonstrate, in another case the seven day letter elicited a response from the defendant with an indication of when the bill would be produced and that production duly occurred within the timescale offered.
27. In terms of communicating in accordance with the protocol, it seems to me that only the claimant has complied with the protocol in setting out the information that was required for the defendant to understand the claimant's position. Given the simplicity of the request for a statute bill, I would have expected the 14 day period rather than the three months to apply for a response. In the absence of any substantive response to any of the correspondence, and indeed no response at all after the request for a further form of authority, in my judgment the defendant cannot complain that the claimant commenced Part 8 proceedings. I note, in passing, the comparable provision in the practice direction regarding personal injury claims which refers to the claimant's entitlement to commence proceedings when the defendant's time for responding has expired without any response having been given.
28. Mr Mason submitted that the claimant should have made further efforts to communicate with the defendant before commencing proceedings. In particular, a phone call could have been made. I do not accept that it is for the claimant to chivvy an unresponsive defendant in this way. Furthermore, the episode of the 14 emails between Mr Green and Mr Plemper I am about to describe (in paragraph 30) regarding the nature of the objection to an order for delivery of the bill and a request for an extension of time for service of written submissions or evidence, does not fill me with any confidence that a telephone call, or any other form of communication, would have resolved matters in any event.
29. Mr Mason submitted that the claimant's conduct during the proceedings ought also to be criticised. This was a more limited submission than in respect of the pre-action conduct. The acknowledgement of service filed and served by the defendant indicated an intention to contest the claim but did not specify any other remedy sought and there was no evidence provided with the acknowledgement of service.
30. The communications on 26 November revolved around what objection the defendant had to an order for delivery of a bill and the procedural question of the ability of the defendant to rely on written submissions or evidence having not done so when filing and serving the acknowledgement of service. Mr Mason portrayed these communications as being a simple request for an extension of time which the claimant had unreasonably refused. There was eventually an agreement for an extension until 10 December 2024 and on that date the defendant provided a final statute bill. Mr Mason described this as narrowing the issues which was a phrase used by Mr Plemper when seeking the extension. It seemed to me to be a slightly inapposite description where the purpose of the proceedings was simply to obtain a final statute bill. That had been provided and there was no suggestion of any remaining issues to be narrowed.
31. Mr Simpson described this day of communications as requiring the claimant to explain to the defendant the latter's choice of options regarding witness evidence and from which the defendant eventually decided to choose. At the same time, the defendant refused to provide any clarification of the basis of the objection to the order sought.
32. Whilst, as I indicated during submissions, I did not place any weight on the question of whether an extension was actually required for written submissions as opposed to written evidence, I do take the view that the communications show the defendant in the worst light. Having not explained why a final statute bill was not forthcoming prior to proceedings being commenced, the defendant filed an acknowledgement of service objecting to an order for a final statute bill but then ignored requests to explain the basis of that objection. Vague comments regarding the narrowing of issues in consideration of offers appeared to be little more than an attempt to secure sufficient time to produce a final statute bill. If that is correct, it is not obvious why that could not be communicated in open correspondence. But if some other consideration was taking place during that period, there was still no reason why the defendant's position could not have been set out.
33. Consequently I do not consider the claimant's conduct during the proceedings to be capable of justifiable criticism either. As I have not found in the defendant's favour in respect of the claimant's conduct either before or during the proceedings, the defendant's final submission – that these proceedings are purely for the pursuit of costs – is an unpromising one.
34. Mr Mason relied upon his criticisms of the pre and post commencement communications to found his argument about the proceedings being for the pursuit of costs. He also referred to the claimant's failure to pick up the phone and the past record of the defendant in producing final statute bills without the need for proceedings. To these matters already addressed, Mr Mason added communications between the parties following delivery of the bill regarding the bringing of a claim for the assessment of it under s70 Solicitors Act 1974. The time limit for a decision about this, which had been imposed by Mr Green upon himself / the claimant, had expired and there was no sign of any proceedings. In Mr Mason's submission, the only conclusion to draw from this was that the s68 proceedings had been brought for the purpose of generating fees, regardless of any intention or decision to pursue an assessment of the bill once produced.
35. Much of the force of Mr Mason's argument has inevitably been removed by my conclusions on the ground he covered in the first two strands of his argument. I do not accept, in any event, that the presence or absence of any s70 proceedings has any bearing on the bringing of these proceedings. The (former) client cannot decide about a possible assessment until such time as they have received a final statute bill and it must be the case that some such claimants decide not to bring subsequent proceedings having seen the bill. To require further proceedings to be brought would be, to my mind, an unjust form of validation of the initial proceedings and I reject that submission.
36. Consequently, for the reasons I have given, I do not think that the claimant's conduct of this claim, either pre or post commencement of proceedings amounts to "conduct" as described in CPR 44.2 which ought to lead to the making of any order other than the costs will follow the event. The claimant has been the successful party and I award the costs of the application to the claimant. There were no submissions as to the basis of the assessment. In any event, I do not think there is anything out of the norm here, so I would expect the costs to be assessed on the standard basis.