7 April 2022

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High Court to decide whether misconduct rules apply to Solicitors Act assessments

The High Court has granted leave for a law firm to appeal a costs judge’s ruling on the basis that CPR 44.11 – dealing with the court’s powers in relation to misconduct – does not apply to a Solicitors Act assessment.

Though Mrs Justice Eady expressed scepticism about the validity of the argument, she said granting leave would allow the issue to be examined properly, “which may be of wider assistance than just this case”.

Her decision in John Poyser & Co Ltd v Spencer [2021] EWHC 3392 (QB) came last October but has only just been published. The Manchester firm issued part 8 proceedings for unpaid fees from a dispute over the validity of a will in which it represented Cynthia Spencer. Master James ordered a solicitor-and-client assessment.

In March 2021, the master made various findings in relation to misconduct on the law firm’s part. She rejected the claimant's argument that CPR 44.11 could not apply and reduced the claimant's costs by 75%, finding that the misconduct was worse than that in the leading 2018 case of Gempride v Bamrah.

In support of its argument that CPR 44.11 should not have applied, the claimant told Eady J that, so far as counsel's researchers disclosed, no other judge has exercised the power afforded by the rule in such an assessment.

The judge recorded: “It is further noted that in Alpha Rocks Solicitors v Alade [2015] EWCA Civ 685 at paragraph 21, in relation to a strike-out application (in the context of a claim by a firm of solicitors to recover their costs and expenses from their client, where the client alleged those bills were fraudulently exaggerated or misstated), the court identified that other available remedies would include costs and interest penalties and proceedings for contempt of court or criminal prosecution, making no mention of CPR 44.11.”

Nonetheless, Eady J said she was “sceptical as to whether this raises an arguable point with reasonable prospects of success”.

She explained: “CPR 44.11 applies to CPR 47 assessments and CPR 47 applies to CPR 46 cases, unless disapplied. Understood in this way, it seems to me that there is a coherent and complete procedure under the CPR, applicable to a detailed assessment of solicitor/client costs; on the face of the Solicitors Act 1974 and the CPR, there is no reason not to apply the detailed assessment provisions under CPR 47 to detailed assessments carried out pursuant to the Solicitors Act 1974, save to the extent that those provisions are expressly disapplied.”

The claimant argued that this approach offended against the principles of statutory construction and that there was no authority, absent the commentary in the White Book, which would allow the approach adopted by the master.

Eady J concluded; “Given the apparent lack of authority on the point and given that I am, in any event, granting limited permission to appeal, in respect of other grounds, I allow this first ground to appeal, there being some other compelling reason why it should be permitted to proceed.

“This will give the court the opportunity to consider the arguments raised as a question of law on the applicability of 44.11 in these circumstances, which may be of wider assistance than just this case.”

Dr Mark Friston for the claimant. The defendant appeared as a litigant in person.