Simcox Associates v Council of the Law Society [2010] EWHC 2954 (Admin)

Case No CO/12566/2009[2010] EWHC 2954 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Venue Cardiff Civil Justice Centre
2 Park Street
Venue CardiffDate Tuesday, 16 th July 2010
CF10 1ET
Before
HIS HONOUR JUDGE MILWYN JARMAN QC(sitting as a Judge of the High Court)
Between
SIMCOX ASSOCIATESClaimantCOUNCIL OF THE LAW SOCIETYDefendant
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Mr Barlow (instructed by Simcox Associates) appeared for Claimant.Mr Murray (instructed by Bevan Brittan LLP) appeared for Defendant.Mr Knapper (of Fursdon Knapper Solicitors) appeared as the Interested Party.
Judgment
[1]This is a substantive hearing of a judicial review claim brought by Simcox Associates, a firm of solicitors based in Bath, of which the sole proprietor is Mr Simcox, against the Council of the Law Society. The interested parties are former clients of his, a Martin Roberts and a Kirsty Withyman, and the solicitor now representing those persons, namely CharlesKnapper.[2]Permission was given to proceed with the judicial review claim on two very limited grounds by Beatson J on 23 February 2010. The application related to wide ranging challenges to two Law Society bodies in relation to Mr Simcox's conduct of property transactions, in particular lease transactions for Mr Roberts and Ms Withyman. The bodies concerned are the Legal Complaints Service and the Solicitor Regulation Authority Board.[3]The matters came before these bodies as a result of a dispute which Mr Roberts and Ms Withyman have with Mr Simcox about the costs which he had charged them for services in 2007 and 2008. He invoiced them in September 2008. He then started debt proceedings against them and summary judgment was obtained in July 2008. Following that summary judgment and an award of costs, the complaints were made.[4]The complaints with which I am concerned as a result of the limited permission given are decisions of an adjudicator to whom the functions of the Legal Complaints Service were delegated. The decisions are dated 31 July 2009 and 21 August 2009.[5]The permission which Beatson J gave is as follows: (i) Permission be granted on the issues of: (a) the adjudicator's direction to order a substituted bill of costs; (b) the amount of the contribution to the costs of dealing with the rejected complaints.[6]It may be helpful if I set out in a little more detail the factual background. Nineteen complaints in all were made to the Legal Complaints Service by Mr Knapper on behalf of Mr Roberts and Ms Withyman. The formal decision of the adjudicator was given after the complaint had been investigated by a senior caseworker. The adjudicator found five of those complaints to be upheld and rejected the others. The complaints that were upheld are in brief as follows: firstly, that Simcox Associates had failed to provide clear information about their costs at the outset of the property transactions; secondly, hourly rates were increased in two of the matters without adequate notice; thirdly, the estimate of costs was exceeded in one matter without notice and there was a failure to provide an estimate in another matter; fourthly, the clients' confidentiality was put at risk by Simcox Associates acting for other parties in a proposed claim against them; and finally, Simcox Associates failed to adhere to their estimate in relation to another matter.[7]The adjudicator's formal decision recorded the authority with which he acted, namely Schedule 1A paragraph 1(1) of the Solicitors Act 1974. That provides that what must be considered is whether the professional services provided by the solicitor in connection with any matter in which he or his firm had been instructed by a client have in any respect not been of the quality which it is reasonable to expect of him as a solicitor. The adjudicator, having set out that authority, emphasised that he was only concerned with matters of poor service. In paragraph 2.4, in summary, the adjudicator agreed entirely with the caseworker's report and considered that that investigation had been carried out thoroughly with a proper analysis of the complaints and that the investigation was fair and transparent to both parties.[8]Having made his findings at some length, the adjudicator then came to give directions. He gave a number of them. The ones which are relevant for present purposes are as follows. Firstly, he directed Simcox Associates to waive bills dated 8 August 2007 and to issue credit notes to Mr Roberts and Ms Withyman in respect of both of them. Secondly, he directed Simcox Associates to reduce all the hourly charging rates in the remaining bills to the basic hourly rates notified to the clients in the terms of business issued to them at the beginning of each retainer, that is, without mark up and to reduce the Value Added Tax therein pro rata. The final direction which the adjudicator gave was as follows:
"I further direct that whilst there is no right of appeal from my Decision (except by way of Judicial Review or, for the customers to the Legal Services Ombudsman) both parties have the right to make further representations to the LCS, which should be referred to me, if after carrying out my directions above there is still a dispute between them as to the final amount owed to Simcox Associates. Any such representations must be made before a Detailed Assessment of the bill is carried out by the Court. I will not entertain representations or reconsider the matter after the Costs Judge has carried out a Detailed Assessment because the LCS cannot be used as an appellate Court."
[9]In what was described as a supplemental decision to the main decision, the adjudicator on the same day gave directions in relation to the cost of the investigation of the complaints. I am told that the reason why the decisions are given in two letters is that it is the policy of the LCS to issue the formal decision to the person making the complaint but not to proceed in a similar fashion in relation to findings as to any costs the solicitors should pay in relation to the complaint. Accordingly, the adjudicator directed Simcox Associates to pay the Legal Complaints Service fixed costs of £840 in connection with its investigation and adjudication of the service complaints. I am told that the reason that there is a reference to £840 is that the LCS have a policy of restricting a request for the costs investigation to that amount. There is no document in relation to the policy before me, but Mr Barlow on behalf of the claimant did not take issue with it. The basis of such a policy is not entirely clear, , other than it may be related to the average cost of investigating complaints.[10]In the directions as to costs, the adjudicator gave four reasons. They are as follows:
"2.1 I have been advised that the total costs incurred in the investigation (excluding the cost of adjudication) were £2,039.70. 2.2 I have noted the Caseworker's recommendation that the solicitors are ordered to pay the Law Society reduced costs of £630 because she has recommended some findings but a significant part of the complaints are not supported. 2.3 I have decided that I should direct the full amount of costs I am able to in this matter because I consider that the inadequate professional service I have found, which in turn relates to inadequate costs information is so serious that a concession in relation to cost is inappropriate. 2.4 I also take into account the fact that the overall costs of the investigation and adjudication are high and it is not fair that the whole profession should have to bear all those costs."
In the last regard I am told that the costs come from a general fund to which practitioners contribute by way of their professional fees.[11]Some 12 days after that decision Mr Charles Knapper wrote to the caseworker by letter dated 12 August 2009. He pointed out that the total amount of profit costs appearing from invoices and credit notes issued by Mr Simcox as a result of the findings of the adjudicator came to some £18,824. That was the sum originally billed. Mr Knapper refers to paragraph 2.44(b) of the formal decision where there was a direct reference to the estimate provided to the solicitor by Mr Simcox. Mr Knapper continues that this estimate assumes that Mr Simcox was charging at the hourly rate of £172.50 per hour and therefore in reality the only sum he could charge was in fact the correct hourly rate of £115 per hour. Mr Knapper also referred to the fact that some of the work was carried out by a trainee solicitor and therefore a different hourly rate should be applied.[12]He said that the new invoices issued by Mr Simcox could not be reconciled with the work carried out as they did not specify what they relate to and they simply invoiced his client, as per the decision of the adjudicator. Attached to that letter were copies of invoices issued by Mr Simcox, some ten in all, which, as Mr Knapper points out, simply described the charges as "to professional charges - LCS decision SR0/94160 - 2208/EM4" and then each invoice sets out a sum of costs and disbursements without further elaboration.[13]The caseworker sent a memo to the adjudicator on 14 August 2009 referring to paragraph 4.5 of the formal decision which I have quoted at length. The caseworker attached Mr Knapper's letter and the credit notes and invoices. The memo proceeds as follows:
"You will see that Fursdon Knapper are concerned that the invoices are not clear enough for them to ascertain whether Simcox Associates have complied with the Decision because:- a) they do not indicate the route to which the charges relate; b) they can not be readily reconciled against the credit notes; c) they do not show the hourly rates applied to each grade of fee earner/attach time ledgers to allow this to be ascertained; and d) they do not take account of the payments on account shown on the credit notes. I have not seen any credit notes that can relate to the bills referred to at 4.1 of your Decision and if any of those supplied by Simcox Associates do refer to these bills then it is not clear. In addition, Fursdon Knapper have suggested that if the bills are new billings, having been credited, then VAT should not apply at the rate of 17.5%."
[14]That led to the adjudicator issuing a further decision which he described as a supplemental decision on 24 August 2009. He indicates that he had read the memo of the caseworker which I have referred to and that he agreed with the observations made by Fursdon Knapper in the letter of 12 August. At paragraph 2.3 of that decision the adjudicator says that the way in which Simcox Associates had redrawn the invoices had obfuscated the calculations which he directed them to make. The adjudicator refers to paragraph 4.5 of his decision giving both parties the right to make further representations if, after the carrying out of his directions given immediately preceding that paragraph, there was still a dispute regarding the amount owing to Simcox Associates. He proceeds as follows:
"2.5 Having considered the representations carefully, I have formed the view that I cannot assist the parties any further. The Legal Complaints Service is not a Court of Law, and does not have the forensic powers available to a Court. It is designed to be a straightforward complaints handling organisation, which can entertain complaints regarding a solicitor’s service, and to reach common sense conclusions using fair and transparent processes. 2.6 The resources available to the Legal Complaints Service do not extend to the detailed examination of solicitors’ bills. There is an alternative civil remedy available to clients for that purpose, namely Detailed Assessment. The bill that has been lodged will have to be withdrawn and a revised bill lodged that reflects the directions I made in my substantive Decision. Unless, of course, the solicitors can reach an agreement as to the costs owed."
[15]He therefore directed that Simcox Associates withdraw the bill of costs already lodged for detailed assessment and, unless agreement as to the costs owed could be reached, Simcox Associates must submit a further bill for detailed assessment, redrawn in accordance with his directions where relevant as set out in the substantive decision dated 31 July 2009. Further, the adjudicator directed that the investigation by the Legal Complaints Service be terminated immediately.[16]On behalf of the claimant Mr Barlow submits that that direction was one which was not within the powers of the adjudicator. It is necessary, therefore, to have regard to the authority under which he was proceeding. Section 37A of the Act in question reads as follows:
"Schedule 1A shall have effect with respect to the provision by solicitors of services which are not of the quality which it is reasonable to expect of them."
[17]Schedule 1A is headed "Inadequate Professional Services" and then there is a subheading, "Circumstances in which Council's powers may be exercised":
"1. —(1) The Council may take any of the steps mentioned in paragraph 2 ( “the steps”) with respect to a solicitor where it appears to them that the professional services provided by him in connection with any matter in which he or his firm have been instructed by a client have, in any respect, not been of the quality which it is reasonable to expect of him as a solicitor. (2) The Council shall not take any of the steps unless they are satisfied that in all the circumstances of the case it is appropriate to do so. (3) In determining in any case whether it is appropriate to take any of the steps, the Council may— (a) have regard to the existence of any remedy which it is reasonable to expect to be available to the client in civil proceedings; and (b) where proceedings seeking any such remedy have not been begun by him, have regard to whether it is reasonable to expect him to begin them."
[18]Directions which may be given:
"2. —(1) The steps are— (a) determining that the costs to which the solicitor is entitled in respect of his services ( “the costs”) are to be limited to such amount as may be specified in the determination and directing him to comply, or to secure compliance, with such one or more of the permitted requirements as appear to the Council to be necessary in order for effect to be given to their determination; (b) directing him to secure the rectification, at his expense or at that of his firm, of any such error, omission or other deficiency arising in connection with the matter in question as they may specify; (c) directing him to pay such compensation to the client as the Council sees fit to specify in the direction; (d) directing him to take, at his expense or at that of his firm, such other action in the interests of the client as they may specify. (2) The “permitted requirements” are— (a) that the whole or part of any amount already paid by or on behalf of the client in respect of the costs be refunded; (b) that the whole or part of the costs be remitted; (c) that the right to recover the costs be waived, whether wholly or to any specified extent."
[19]Then there is a paragraph 5.1 which reads as follows:
"If a solicitor fails to comply with a direction given under this Schedule, any person may make a complaint in respect of that failure to the Tribunal; but no other proceedings whatever shall be brought in respect of it."
[20]Mr Barlow submits that the direction which the adjudicator gave on 24 August 2009 in relation to redrawn bills does not come within any of the directions which the adjudicator with the delegated authority of the LCS may make under paragraph 2 of Schedule 1A to the Act. He submits that the reasons that the direction in question was ultra vires are threefold. Firstly, the adjudicator did not indicate in his direction that that was in the interest of the client. Secondly, the adjudicator did not say that it amounted to "other action" within the meaning of paragraph 2(1)(d) of that schedule. Thirdly, there is no indication that any consideration was given as to whether the adjudicator was satisfied that that direction was in all the circumstances of the case appropriate to do so.[21]Further, Mr Barlow submits it is not for the adjudicator to seek to enforce directions that are given. He relies particularly on paragraph 5.1 and submits that if a solicitor fails to comply with a direction then it is a matter of disciplinary procedure which should follow. He submits that it is a matter for the court to deal with the question of the reasonableness of a bill of costs. If there is a dispute then it should be a matter for the disciplinary process. He says the way in which the adjudicator went about giving this direction raises arguments about the correct form of VAT. He further submits that it is quite clear from Mr Knapper's letter dated 12 August 2009 that the question of the rates to be applied and the question of who carried out that work could easily be calculated by a costs judge dealing with those issues. That might well be the case, but in my judgment it was within the power of the adjudicator to reserve the question of further directions to himself as he did in paragraph 4.5 of his substantive decisions.[22]In my judgment it is plainly in the interests of the client where there is a clear finding of the nature which the adjudicator found in this particular case that there should be clarity about the fees and costs which the solicitor was entitled to seek from the client. The adjudicator in my judgment had well in mind the fact that there were already court proceedings afoot. That much is clear from paragraph 4.5 which I quoted at length above. Having regard to the invoices which Mr Knapper copied to his letter dated 12 August 2009 and the caseworker's memorandum, in my judgment it was within the powers of the adjudicator to seek clarity in the interests of the client.[23]Mr Murray submits that such a direction comes within paragraph 2(a), (c) or (d) of the schedule. In respect of paragraph 2(1)(a) Mr Murray says that this direction was directing Simcox Associates to comply with one of the permitted requirements as defined in that paragraph, namely that the right to recover costs be waived whether wholly or to any specified extent. I accept that submission. Once the adjudicator came to the conclusion as he clearly did that not all of the bill of costs should be recovered then in my judgment it was within his powers to direct a mechanism by which the extent to which the costs bill should be waived should be calculated. It may well be, as Mr Barlow submits, that a costs judge with some investigation could have carried out that exercise, but it does not follow in my judgment that that was not a matter which the adjudicator could direct for himself.[24]In relation to 2(1)(b) I accept Mr Murray's submission in this regard also. In my judgment this was a question of directing the rectification of the errors and the failures in relation to costs estimates which the adjudicator had identified. If I am wrong in relation to those two matters then in my judgment it plainly comes within such other action in the interests of the client. It is plain in my judgment that a mechanism whereby costs properly billed should be calculated is in the benefit of the client. I do not regard the fact that no specific reference was made to paragraph 1(1) or 2(1) or 2(2) of the schedule in the formal decision vitiates it in any way. On a fair reading of the decision and supplemental decisions as a whole, in my judgment it is clear that the adjudicator had regard to the principles set out in those paragraphs. He also had regard, it is clear, to the fact that it was appropriate to make the directions he did.[25]I do not regard the fact that there were other proceedings ongoing prevented the adjudicator from making the direction under challenge. He clearly had regard to that fact. The schedule clearly has regard to the possibility that proceedings for the determination of a bill of costs are ongoing. So far as paragraph 5.1 of the schedule is concerned, that in my judgment is permissive. If a solicitor fails to comply with a direction then a person may make a complaint. The reference to no other proceedings whatever in my judgment refers to no other proceedings other than any complaint being dealt with and any directions which could be given as a result of that complaint, as it was in this case. Accordingly I am satisfied that the directions and the challenge given by the adjudicator were within the powers which were delegated to him.[26]The second ground on which permission was given to challenge this decision relates to the decision as to costs dated 31 July 2009. The power to make such an order is dealt with by paragraph 7 of the schedule which reads as follows:
"7 Where the Council take any of the steps with respect to a solicitor they may also direct him to pay to the Council— (a) the amount of the fee repayable by the Council to the client under paragraph 6(3); and (b) an amount which is calculated by the Council as the cost to them of dealing with the complaint, or which in their opinion represents a reasonable contribution towards that cost."
[27]Mr Barlow makes three broad submissions in an effort to make good his submission that the decision as to the costs is reviewable. Firstly, he says that by referring to the fairness or otherwise of the whole profession bearing the costs of the investigation, the adjudicator took into account an immaterial matter. I do not accept that submission. The reference in paragraph 7(b) is an amount which the Council (and hence the adjudicator by delegated authority) opines represents a reasonable contribution towards that cost. In my judgment the fact that the costs are borne by the profession as a whole is a factor to be taken into account in deciding what a reasonable contribution is.[28]Secondly, Mr Barlow submits the reference by the adjudicator to a concession shows that he did not have proper regard to the requirement to decide upon a reasonable contribution under paragraph 7(b). I accept that the choice of wording is a little odd, but reading the decision as a whole, as in my judgment it must be, I am satisfied that the adjudicator had proper regard to the statutory authority under which he acted in this regard. I accept that the nub of his decision was that although some complaints had been not supported, the complaints which he did find upheld were so serious that the figure of £840 was a reasonable contribution for Simcox Associates to make. That was some 40% of the total costs of the investigation in this particular case, excluding the costs of the adjudication.[29]Next, Mr Barlow submits that the finding of the adjudicator that the costs of £840 should be paid is inconsistent with the finding in his substantive report that he agreed entirely with the caseworker. I am not persuaded that that reference includes a reference to the costs recommended by the caseworker. Pursuant to the policy I have referred to earlier, the caseworker issued a separate decision to Simcox Associates in relation to costs. The recommendation was on the basis that not all of the complaints were upheld. Again, in my judgment the adjudicator was acting well within his powers and his discretion on cost to come to the decision which he did.[30]Finally, Mr Barlow submits that by restricting himself to the policy of awarding only £840 and then by going to the maximum of that figure, the adjudicator fettered his discretion as to costs. Again, I do not accept that submission. Reading the decision as a whole, in my judgment the adjudicator had regard to the overall costs, he had regard to the fact that some complaints were not upheld but also had regard to the fact that those which were upheld showed serious failures in providing professional service. And in my judgment he was entitled to make the finding he did.[31]Accordingly this claim is dismissed. MR MURRAY: My Lord, that only leaves the question of the costs of this claim. It is obviously going to be my submission that the having entirety of the claim dismissed (inaudible)... JUDGE JARMAN: Yes. MR MURRAY: Just a couple of points to make that good. The claim that has been brought by – JUDGE JARMAN: Shall we see if that is resisted? MR MURRAY: Yes. MR BARLOW: No, it is not. JUDGE JARMAN: Thank you very much. Mr Knapper, do you wish to say anything at this stage? MR KNAPPER: Yes, my Lord. Have you had an opportunity to see my skeleton argument on costs? JUDGE JARMAN: I have, thank you, yes. MR KNAPPER: I am grateful. Without taking you through the entire skeleton, which would be inappropriate, there is a case where I have been dragged into these judicial review proceedings because of course the original application runs to some 700 pages. It is two bundles that you have in front of you and, whether the claimant likes it or not, 90% of those bundles refers to me and it refers to my conduct. I am criticised for, it appears, raising the complaint in the very first place when I was clearly raising a complaint on behalf of my clients. In fact, it is significant that Beatson J rejected every single aspect of the complaint – JUDGE JARMAN: So you are claiming your costs? MR KNAPPER: Indeed. JUDGE JARMAN: Shall we hear if that is disputed? MR BARLOW: Yes, that is disputed. JUDGE JARMAN: Well, lets hear why then and then I will come back to you, Mr Knapper. MR BARLOW: That is disputed on the basis of ordinarily in judicial review proceedings the court only makes one order for costs against an unsuccessful claimant and that order would usually be in relation to the defendant. An interested party does not actually participate in the proceedings or incur any costs. The usual staged mechanism is if an interested party wished to take a part, it should serve an acknowledgment of service so indicating. There was no such acknowledgment of service in these proceedings. The simple fact of the matter is that court adopts such a strategy of policy so as to prevent the chilling effect on claimants coming to the court to seek judicial review. That is why there is only usually one costs order and that is in favour of the respondent. The respondent in these circumstances has discharged their duty of defending decisions made and that was quite adequate and should have been evidence to any interested party that that order stands. Furthermore, on the papers Hickinbottom J refused permission. It is true that there was renewed application, but the interested party did not attend that application. It is not in the transcript, his making submissions to the court, and permission was refused in relation to any matter connected to the interested party. So on our submission, in principle the court should not as a matter of discretion makes a costs order against the claimant in favour of the interested parties. It will be a departure from the court's usual practice to do so. It has sometimes been the case that the court might entertain making a costs order in relation to an acknowledgment of service, say. It is not, with respect, the court's position that it would usually make an order that the claimant -- that an unsuccessful claimant should pay the costs of an interested party because that would subject a claimant to potentially two twin costs orders against one respondent and interested parties, or you could have multiple parties. So on that basis, in my submission, your Lordship should reject the application for an order that my client pay all or any part of the third party's costs. JUDGE JARMAN: Do you accept that allegations of misconduct were made by the claimant against Mr Knapper? MR BARLOW: Yes. But the point in relation to those allegations is that permission has never been given to proceed on those allegations. JUDGE JARMAN: And when was your skeleton argument served on Mr Knapper? (Pause) MR BARLOW: I am instructed that they were sent to Mr Knapper on Tuesday of this week. But, my Lord, be that as it may, in relation to that it does not impact on the general proposition that the court does not make twin costs orders. Permission has been refused to proceed with any allegations (inaudible) made. That was as long ago as the order of Beatson J. Quite regardless of (inaudible) as an argument, the point is there are separate complaints procedures that my client invoked against Mr Knapper and it was those allegations, where serious allegations were made against Mr Knapper for misconduct which were thrown out and it was decided not to investigate, and that application for judicial review failed the first hurdle because permission to proceed is refused not once but twice. So there was no connection on that (inaudible). (Pause) I do not know whether your Lordship wants to see the schedules before your Lordship decides on the question of costs? JUDGE JARMAN: It is a matter for you. I am not particularly concerned to see them before I make a decision on costs. I need not trouble you, Mr Knapper. JUDGE JARMAN[32]Mr Knapper, an interested party in these proceedings, makes an application for his costs. He properly concedes that ordinarily in such proceedings as these the claimant will not be required to pay more than one set of costs. What he says, however, is that two sets of costs may be ordered in respect of the interested parties’ costs where the interested party has to defend particular allegations against them.[33]Mr Barlow for the claimants accepts Mr Knapper's submission that the original claim for judicial review in these proceedings was wide-ranging and involved substantial allegations of misconduct against Mr Knapper. What Mr Barlow submits is that permission to proceed with the claim was refused by Hickinbottom J on paper as it was and on the oral renewal of that application before Beatson J, in respect of which Mr Knapper did not take part, the grounds on which permission was given to proceed were very limited grounds.[34]Beatson J during the course of his judgment did indicate that the parties should, because of the limited permission, focus their attention on those grounds and an application was made following that which came before me for the claimant to do just that. I refused to accede to that application because in the meantime Mr Simcox had filed another lengthy document setting out that the original grounds of claim were by way of background to the two grounds which proceeded, even though it was not entirely clear as to how the case was then being put. That did not become clearer until a skeleton argument of Mr Barlow was filed and I am told that that was served on Mr Knapper on Tuesday, that is, just three days or so this before hearing. That skeleton argument did, it seems to me, go a little beyond the strict ground of ultra vires which in my judgment Beatson J granted permission on, and in my judgment it was reasonable and understandable for Mr Knapper to attend today.[35]Accordingly I award him his costs in these claims. MR BARLOW: My Lord, I am in your hands as to whether you are proposing to carry out a summary assessment of the costs of today. Certainly the defendant has served a schedule of costs and I do not know if Mr Knapper has done the same. MR KNAPPER: If your Lordship is minded to go through the summary assessment there are several objections that need to be gone through in some time and detail. My Lord, since there has not been a previous oral hearing before this court, it actually occupied the court for more than one day, technically your Lordship would be -- it would be appropriate, my Lord, for a detailed assessment if you are minded to order costs. MR MURRAY: I am not instructed to pursue an application for summary assessment (inaudible). JUDGE JARMAN: Mr Knapper, do you wish to say whether I should summarily assess the costs today or order a detailed assessment? MR KNAPPER: My Lord, in terms of my costs, my schedule of costs is significantly less. Mr Simcox's costs are about £18,000. I understand the defendant's costs are about £26,000. I have a schedule which is just under £7,000. I believe that so far as my involvement, it does come to less than one day and it would be appropriate to summarily assess the costs of the interested parties today, not least of all because they are so significantly lower than the costs of the claimant and the defendant. I have submitted detailed reasons as to why I should have been awarded costs with the authorities and I have succeeded so far as that is concerned – JUDGE JARMAN: We are just talking about the detail of – MR KNAPPER: The detail of the costs are up to the point when this was submitted to the court last week. It does not take into account any preparation for this hearing because, having received the skeleton and read it, I am in a position where I have stayed with the costs submitted. JUDGE JARMAN: Mr Knapper, if your statement does not include up-to-date costs, how am I going to summarily assess those? MR KNAPPER: No, I am not seeking any further – JUDGE JARMAN: You are not seeking any further costs? MR KNAPPER: No, I am saying that these as submitted are dated 12 July – JUDGE JARMAN: Or are you just seeking – MR KNAPPER: And they come to £7,035. JUDGE JARMAN: Shall we hear what Mr Barlow says? MR BARLOW: My Lord, with respect, they may come to £7,035 but they go also to introduce questions about whether he is claiming them on his capacity as a solicitor or he is claiming under the capacity of a litigant in person and that IS a matter which might be appropriate for the costs judge to determine, particularly in relation to individual elements and the dates on which it is said they have been incurred. So in my submission if you are going to send off the defendant's costs to be subject to a detailed assessment, it might as well all be dealt with by the same costs judge in one go. JUDGE JARMAN: How much of Mr Knapper's costs are you saying should be assessed on the basis of acting in person? MR BARLOW: This will require some investigation by the costs judge to ascertain (inaudible). JUDGE JARMAN: What are you saying, Mr Barlow? MR BARLOW: It is hard to know, my Lord, because there has not been an acknowledgement of service filed indicating he was acting professionally. On that basis, all of them should be as a litigant in person because there is technically no representation before the court. JUDGE JARMAN: Has this point ever been taken before today? MR BARLOW: My Lord, I do not think the point has formally been taken before today, no, or informally for that matter. JUDGE JARMAN: No. MR BARLOW: It nevertheless is a point, in my submission, for the costs judge. MR KNAPPER: My Lord, I can help you on that point? If I refer you to Part 54.10, providing detailed submissions and grounds have been submitted to the court showing opposition to the application for permission, there is no requirement to file an acknowledgment of service and it then becomes clear that that party has the right to participate in the proceedings. The acknowledgment of service is effectively overridden by Part 54.10. It is very clear. JUDGE JARMAN: Is there a prospect, if I adjourn this matter until, say, 2pm, is there a prospect the parties can at least attempt to agree this matter? MR BARLOW: I would have to take instructions. JUDGE JARMAN: All I am asking is, is there a prospect, Mr Barlow? (Pause) MR BARLOW: I am instructed that it is unlikely. JUDGE JARMAN: That does not shut the door completely. What I propose to do then is I will adjourn the question of whether I summarily assess your costs, Mr Knapper, until 2pm. If you need some more time, if you are getting somewhere, let me know or let my clerk know. I will adjourn the question of the costs of the defendant for detailed assessment in default of agreement, so you need not come back at 2pm, Mr Murray. MR MURRAY: I am very grateful. Just one point before we rise. Although I am not instructed to pursue an application for summary assessment today, I would submit that it is appropriate for an interim payment on account of costs to be awarded in the defendant's favour. The schedule that has been filed and served as my learned friend has said comes to £26,000-odd and it is inconceivable that following any detailed assessment any proportion of that will not be awarded by way of costs. This is money that the defendant has had to pay already. There is no justification in those circumstances for the defendant being kept out of its money any longer than is necessary. JUDGE JARMAN: What are you asking for? MR MURRAY: 50%. JUDGE JARMAN: How much is that? MR MURRAY: Just over £13,000. JUDGE JARMAN: Within how long? MR MURRAY: The usual rule would be 14 days, but I do not think we will object to, say, 21. JUDGE JARMAN: 21. All right. Mr Barlow? MR BARLOW: My instructions are that, properly viewed, the maximum amount of this bill should have been in the region of £15,000 and so to order 50% of what we say is already an overstated bill rather compounds the issue, so in my respectful submission if you are going to make an Interim Order -- I am not saying you should not make an Interim Order in principle, it is a question of quantum, I respectfully submit the appropriate quantum is about £6,500. It is a matter for your discretion. You should not just assume that because there are asking for 15 there is an appropriate – JUDGE JARMAN: No, I am not going to assume that, but you are saying that you think a proper bill would be £15,000. MR BARLOW: Yes, and if you give them 50% of that it would be – JUDGE JARMAN: If you accept about £15,000 of that is proper, then why should I – MR BARLOW: I am sorry, I am not making myself clear. It is only proper on the basis that we consider this to be over calculated, considerably over calculated. On that basis, adopting a go at the new rule of thumb, a third would usually be trimmed off. If we are saying it is £15,000, we would expect a third to be trimmed off anyway. JUDGE JARMAN: That comes to £10,000. MR BARLOW: Indeed it does, my Lord. JUDGE JARMAN: Would you accept £10,000, Mr Murray? Would you agree to £10,000 within 21 days? Anything else? MR MURRAY: Not from my side, thank you very much. JUDGE JARMAN: All right, I will adjourn until 2pm. Well, you had better make it ten past two, and if progress can be made in the meantime, all well and good. It does seem to me to be a shame if further time and expense are to be incurred if a reasonable accommodation can be reached. (Adjournment) JUDGE JARMAN: Can we establish, are we still arguing about whether I should assess them or – MR KNAPPER: My apologies. Whether you should assess on a summary basis? JUDGE JARMAN: So that is the first decision, yes? MR KNAPPER: Yes, it is. Even if you are against me on that, I say that you should not be, if you go to Part 48.6 which would be the section that deals with litigants in person, there is a starting point which is two thirds of the solicitor's costs for a litigant in person, but – JUDGE JARMAN: That is subject to a cap, is it not? MR KNAPPER: Right, I was not aware that it was. JUDGE JARMAN: It is £9 an hour, Mr Knapper. MR KNAPPER: That is assuming that you find that that is the case. JUDGE JARMAN: Yes. MR KNAPPER: But it also goes on to say that the amount of costs to be allowed to a litigant in person for any item would actually be the financial loss that he can prove that he has lost for the time reasonably spent on the work done. And it is interesting if you go to 48.6(2) it does go on to say a litigant in person may be allowed such costs as would have been allowed if the work done and the disbursements incurred had been done and incurred by a solicitor on his behalf, and it goes back to say a litigant in person is, the meaning of that, is "unrepresented party". So I have two submissions here. One is that at all times Fursdon Knapper Solicitors have been on the record as acting. I have represented this position through the firm and I have undertaken all the work as a solicitor because the attacks on me were in my capacity as a solicitor and I appear as a solicitor. If you are against me on that I come back to 48.6. The starting point is whether or not today you should summarily assess. Number two is how you should summarily assess. In terms of whether you should make a summary assessment of the costs, you have a costs schedule in front of you – JUDGE JARMAN: You say in front of me? MR KNAPPER: My apologies. JUDGE JARMAN: I am not sure it is in front of me. When was it sent in? MR KNAPPER: Last week. Can I pass this one up? It is probably easier. JUDGE JARMAN: Thank you. There were some documents I did not read because I noticed a reference to the fact that I should not be reading them, but... I have a statement of costs of Mr Simcox, two of those, and one of Bevan Brittan. I do not seem to have one from you. MR KNAPPER: I have an email receipt from – JUDGE JARMAN: Again, I am sure it is not an issue of receipt, Mr Knapper; it is a question of getting it to me. MR KNAPPER: My apologies. It has been served on the claimant. My Lord, I merely say these are modest costs. I have not instructed counsel because I have conducted the work myself. Had I instructed counsel I believe the costs would have been significantly higher. I have chosen to deal with this matter in a proper manner and have submitted what I believe is a modest costs schedule for the work that has been undertaken. There is no inclusion of VAT because of course I am VAT registered. JUDGE JARMAN: The attendances at a hearing, which hearing is that? MR KNAPPER: Today. JUDGE JARMAN: I understood from something you said earlier that you were not claiming costs beyond 12 July. MR KNAPPER: My apologies; I misled you. What I have not included is the analysis of the claimant's skeleton argument, which was only served on Tuesday, and the analysis of the defendant's skeleton arguments made in preparation for today. In other words, there is a cut-off at the 12th and I do not seek to recover any additional costs today – JUDGE JARMAN: Apart from attendance. MR KNAPPER: Apart from what had been incurred up to that date. JUDGE JARMAN: Right. MR KNAPPER: It is straightforward. JUDGE JARMAN: Thank you. Yes. MR BARLOW: My Lord, in our submission, it is going to be a complicated exercise determining what is the litigant in person and what is not and applying the cap principles to these – JUDGE JARMAN: Why is it going to be complex? MR BARLOW: Because if one looks at 48.6 in the Rules, there is a definition of a litigant in person to start with which is not terribly helpful. JUDGE JARMAN: No. MR BARLOW: And it does create propositions about monies that were paid. I believe it is £9.25 an hour, as your Lordship was intimating, and therefore it would be necessary to carry out the assessment. So on the basis that (inaudible) one awards just short of £10 an hour and since this bill was for thirty five hours and thirty six minutes, it would be a relatively small award. JUDGE JARMAN: No, but there is authority, is it there not, dealing with the situation we have here where a solicitor engaged in litigation acts for himself but in a professional capacity as a qualified person representing himself. That is somewhat different from the situation where someone represents themselves without any legal qualification to do so. MR BARLOW: I am not entirely sure this is quite as straightforward as that, my Lord, because Part 48.6(6) – JUDGE JARMAN: I did not say it was straight -- I said there was authority on the position. MR BARLOW: I would not want to mislead the court about that. I cannot say I know for certain what the authority is on that position. JUDGE JARMAN: Right. MR BARLOW: It is difficult to ascertain from the White Book as to what precisely should be done because there is another provision that then says attention is drawn -- a solicitor instead of acting for himself is represented in proceedings by his firm or by himself in his firm's name is not for the purpose of the Rules a litigant in person. So how one squares that with the earlier proposition drawing attention to the rule it says a solicitor or solicitor’s employee or other authorised ... is a litigant in person acting for himself, so – JUDGE JARMAN: In this position he is not a litigant in person acting for himself; he is a qualified solicitor acting for himself. MR BARLOW: Yes, my Lord, I grasp that. One can be a qualified solicitor acting for oneself but one nevertheless is still a litigant in person for the purpose of this rule and Part 48. JUDGE JARMAN: As you say, it is not defined, but where do you get that definition from? MR BARLOW: The two parts I have read out are the Practice Direction paragraph 52.5, Part 48. It says, "Attention is drawn to Part 48.6.6(b) which says a solicitor who instead of acting for himself is represented in proceedings by his firm or by himself in his firm’s name is not for the purpose of these rules a litigant in person. JUDGE JARMAN: Is that not the end of the matter? MR BARLOW: My Lord, we respectfully submit it is not because there is no piece of paper filed by the court in this firm's name. All there had been thus far is summary grounds for the interested party which are signed by Charles ES Knapper. It does not say that it is on behalf of the firm, his firm, which I think is Knapper Furman… MR KNAPPER: Fursdon Knapper. MR BARLOW: I do apologise, Fursdon Knapper. So there is a distinction between using the firm's name and using one's own name and thus being a litigant in person, it would appear from the Rules. Because there has not been an acknowledgment of service saying, for example, (inaudible) filed by the defendant, it is executed by (inaudible) identifiable firm of solicitors, one does not have here the same certainty as to the rule and the costs basis, the basis on which it should be assessed. So, in my submission, it is probably best left over for the costs judge to determine. JUDGE JARMAN: If you really think the extra cost and expense and trouble and worry is going to be justified. It seems far more desirable to me that an end is put to this today. I cannot impose an agreement on the parties. MR BARLOW: My Lord, can I take instructions? (Pause) My Lord, my instructions are my client is going to put himself in your Lordship's hands on summary assessment. JUDGE JARMAN: Very well. MR BARLOW: My Lord, on that basis would it be more appropriate if I commented on the schedule? JUDGE JARMAN: Well, you must put your submissions as you wish and on instructions, but is the point still taken that the regime applicable to a litigant in person is not a solicitor applies or not? MR BARLOW: Yes. JUDGE JARMAN: That is still a point taken, right? MR KNAPPER: My Lord, I think I may be able to help you on that point now. In the notes to Part 48.6.2 a practising solicitor – JUDGE JARMAN: Sorry, Mr Knapper, which notes? MR KNAPPER: It is CPR Part 48.6 – JUDGE JARMAN: Which notes, it refers to a number of publications? MR KNAPPER: My apologies, it is in the court practice:
"A practising solicitor who conducts his or her own litigation and is awarded costs may recover profit costs for the time taken, but not where the practice is limited to practising without remuneration and without indemnity cover."
Of course, my firm does not fall into the exclusion. It probably helps, my Lord, that every single letter, and quite importantly the letter enclosing the claimant's schedule of costs, is addressed to Fursdon Knapper Solicitors. JUDGE JARMAN: Yes, that is when you were acting for Mr Roberts and Ms Withyman and before these present proceedings were – MR KNAPPER: No, no. JUDGE JARMAN: Mr Knapper, let me finish, please. MR KNAPPER: Sorry. JUDGE JARMAN: -- before these present proceedings were instituted. The question is not the costs before the adjudicator, but the cost of these proceedings MR KNAPPER: I am talking about these proceedings, my Lord. I am actually talking about the letter of 14 July, which encloses the claimant's schedule of costs for this hearing, is addressed not to Charles Knapper but to Fursdon Knapper solicitors, 308 St Levan Road. I have the fax here. JUDGE JARMAN: May I have a look at that, please? MR KNAPPER: It is the claimant's schedule of costs and it makes the position so clear. It does not even have my name on it. That, my Lord – JUDGE JARMAN: All right, lets see what Mr Barlow says. Have you seen this, Mr Barlow? MR BARLOW: I have not (inaudible), thank you. (Pause) JUDGE JARMAN: Mr Barlow, do you want time to consider your position and take instructions? MR BARLOW: I would be most grateful, my Lord. (Brief adjournment) MR BARLOW: Before your Lordship proceeds to a summary assessment, your Lordship will need to determine whether or not Mr Knapper is entitled to claim on the basis of being a solicitor representing himself or whether it is a case that should be regarded for the purposes of Part 48.6 as a litigant in person. JUDGE JARMAN: Yes. MR BARLOW: My Lord, it appears the resolution to that question turns upon the interplay of rule 48.6(6)(b) and paragraph 52.5 of 48 PD.3.

(b) says:

"For the purposes of this rule, a litigant in person includes …(b)a barrister, solicitor, solicitor’s employee, manager of a body recognised under section 9 of the Administration of Justice Act 1985 or a person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes the conduct of litigation (within the meaning of that Act) who is acting for himself."
You need to decide whether he is acting for himself. And then the Practice Direction at paragraph 52.5 says -- attention is drawn to the rule I have read to your Lordship, and then it says:
"A solicitor who, instead of acting for himself, is represented in the proceedings by his firm or by himself in his firm name, is not, for the purposes of the Civil Procedure Rules, a litigant in person."

JUDGE JARMAN:

Yes. MR BARLOW: So it seems, my Lord, that is the question your Lordship has to determine factually in order to decide the status of Mr Knapper. And I hope I have expressed that fairly. Your Lordship, I was making the point earlier that the documentation emanating from Mr Knapper does not have the name of his firm on it, for example skeleton arguments. It does not say it comes from the firm. The summary grounds which were put in do not say they come from the firm; they say from Charles ES Knapper. Though I accept as a matter of fact that Mr Knapper has produced letters sent from those instructing me to his firm, my instructions are they were sent for the purpose of receipt by Mr Knapper – JUDGE JARMAN: In that case why should they be in the name of the firm? MR BARLOW: There it is. As I understand it one uses the address on the basis you send off to a person at their last known residential address or a business address. JUDGE JARMAN: That may be so, but that does not explain why the letters were addressed to Fursdon Knapper. MR BARLOW: Because presumably it is Mr Knapper’s business address. JUDGE JARMAN: Why not Mr Knapper, care of…? MR BARLOW: I cannot answer that question, my Lord; it is what has been done. JUDGE JARMAN: Right. MR BARLOW: That would have been the first question your Lordship would have to determine and then we move to summary assessment. My Lord, shall we do it all in one go or shall we do it in bite sizes? JUDGE JARMAN: I think it might be better if I make a ruling on the first point. MR BARLOW: Yes. JUDGE JARMAN: Mr Knapper? MR KNAPPER: My Lord, the simple facts are that the letter which enclosed the bundle -- and there is actually a direction from Mr David Gardener of the Administrative Office to the claimant to serve all the interested parties with a bundle, because in fact the claimant refused to serve a bundle -- that letter is dated 9 February, it is addressed to Fursdon Knapper Solicitors. So at a very early stage Simcox is writing to Fursdon Knapper. For the sake of ease, I have brought the last two letters for which the core bundle was delivered to Fursdon Knapper Solicitors. It simply says:
"We enclose by way of information a core bundle of documents for the hearing on 16 July."
The schedule of costs is also sent to Fursdon Knapper. My Lord, each and every letter that has been sent to the claimant and to the court has been sent on Fursdon Knapper headed notepaper and of course the schedule of costs that you have -- my apologies, I did not bring a spare -- does refer to Fursdon Knapper – JUDGE JARMAN: Right, I’ve handed it to Mr Gardener. MR KNAPPER: No, my schedule. That refers to Fursdon Knapper in the schedule. No issue has ever been taken by the claimant, and it is significant that for the hearing before Beatson J there was a schedule of costs submitted at that hearing by Fursdon Knapper Solicitors for the time that I had taken in preparing the summary grounds opposing the application for permission, and that of course was also served on Mr Simcox, so every single piece of correspondence to and from claimant, interested party and the court has been in the name of Fursdon Knapper Solicitors. JUDGE JARMAN: The conduct which you are concerned about, was that conduct which you undertook as partner in the firm of Fursdon Knapper? MR KNAPPER: It was. I took advice from Mr Gordon Crozier of counsel, Queen's Bench Chambers, in Plymouth. Although his advice does not appear in this because it was advice sought about the allegations and whether they impacted on the firm or me as an individual -- I do not have counsel's opinion but it was simply that it affected the firm as a whole, because the firm had undertaken to raise the complaints on behalf of Mr Roberts and Ms Withyman. It is important, my Lord, to understand that these are not my complaints – JUDGE JARMAN: No, that is clear from the decisions. MR KNAPPER: At all times that has been my position. My Lord, I am sure I cannot help you any further. JUDGE JARMAN: Do you wish to come back? MR BARLOW: No.

JUDGE JARMAN:

[36]I am now asked to assess summarily the costs of the interested party, Charles Knapper. A preliminary point has arisen as to whether for these purposes he is to be regarded as a litigant in person for the purposes of the Civil Procedure Rules and in particular Part 48 and the Practice Direction thereto, paragraph 52.5, which says that a solicitor who acts for himself is to be regarded as a litigant in person but not acting through a firm.[37]The conduct which was alleged against Mr Knapper was alleged against him, I am satisfied, as a partner in the firm of Fursdon Knapper. It was that firm who acted on behalf of Mr Roberts and Ms Withyman and it is that firm which made the complaint to the adjudicator of his decision in respect of which this challenge was made.[38]Mr Barlow on behalf of Simcox Associates accepts that this issue is primarily a factual one. He points to the fact that the skeleton arguments and summary grounds are in the name of Mr Charles Knapper. Against that, Mr Knapper points out the fact that bundles served by Simcox Associates in February and nearer the trial were served on Fursdon Knapper solicitors. All correspondence in relation to this matter came from that firm on the firm's letter headed notepaper. Mr Barlow says that the reason that documents were sent to the firm is simply that that was a service address for Mr Knapper, but he is unable to explain why if that is the case the correspondence simply did not refer to Mr Knapper, care of that address.[39]I am satisfied on all the information before me that the proper way to regard Mr Knapper's involvement is as a principal of the firm and deal with the matter as such. Accordingly, I do not regard him as a litigant in person. Right, Mr Barlow, what is next? MR BARLOW: Next is to look at the summary assessments (inaudible) costs and determine therefore using a broad brush what your Lordship thinks is an appropriate sum in the amount of costs. Could I make this observation: that Mr Knapper is claiming as a Grade A solicitor which is £198 an hour which is the highest grade one could employ. It may have been more appropriate in the circumstances to employ a lower grade which would substantially reduce the hourly rate of remuneration. Furthermore, if one moves down the left hand column work on documents, which is second up from the bottom, it does say 18 and three quarter hours just spent on documents, which in my submission is plainly excessive. JUDGE JARMAN: Your client spent 44 hours on documents. MR BARLOW: Yes, but it has already been commented before court that was involving the preparation of 700 pages in the bundles. JUDGE JARMAN: But that had to be read, did it not? MR BARLOW: It may be that they had to be read, but nevertheless it takes more time to prepare them in my submission – JUDGE JARMAN: Well, the answer to that is that is why it is eighteen hours and not 44 hours. MR BARLOW: There were other matters as well in relation to my client, but nevertheless I see your Lordship's point. But those are the submissions and (inaudible) on others. A third down, just shy of two and a half hours -- with respect I do not understand why there would be attendances on "others", why Mr Knapper, merely being an interested party … it says attendance at hearing would be six hours, which I presume (inaudible) is meant to be today. We started at half past ten this morning. I understand Mr Knapper comes from Plymouth. No doubt your Lordship has an idea what your Lordship thinks is a reasonable sum. So all in all, in our submission that is not a reasonable sum and should be considerably pared back and we would respectfully submit if it is assessed on that basis a reasonable sum is approximately about £2,500. We note there is no VAT element in this. Unless I can help your Lordship further, those are our submissions on summary assessments. JUDGE JARMAN: Thank you very much. I need not trouble you on documents, Mr Knapper, but can you assist me as to the attendance on others and hearing time? MR KNAPPER: The attendance on others includes all the attendances on the court and Bevan Brittan. I have had to liaise with Bevan Brittan because unfortunately the claimant has refused to send documents to me and refused to engage in the production of the bundle. In fact, it was only the fact that Mr David Gardener of the Administrative Court Office who became involved that my grounds were put into the core bundle. That is a fact that is on file. As to attendance today, I have allowed the travel time. I set off at 7am this morning – JUDGE JARMAN: Do not worry about the travel time, but the actual hearing. MR KNAPPER: The hearing, I have allocated six hours. I arrived here at 10am and we have been here five hours. I apologise if it is an hour short. It is what was listed. JUDGE JARMAN: So you accept £198 comes off that, do you? MR KNAPPER: Yes. I do not suppose I can argue at that point other than of course I have lost the entire day today through this hearing. But I have of course been generous to Mr Simcox because I have not included any work that has been carried out after the 12th, so it is a broad brush approach and I agree with Mr Barlow in that respect and I would ask you to adopt that approach. If you feel it is appropriate to deduct, then I agree. MR BARLOW: It is simply all out of proportion with respect to order £7,000-odd in relation to third party's costs in a judicial review. I would ask your Lordship to bear in mind (inaudible). JUDGE JARMAN: Thank you.

Right, Mr Barlow, what is next?

JUDGE JARMAN:

[40]Having made my ruling on whether Mr Knapper is a litigant in person within the Rules, I now move on to assessment of costs.[41]Two points can be dealt with fairly shortly. First of all, questions raised as to the attendance at the hearing. Mr Knapper has allowed for six hours. In the event it has taken five hours, so it seems to me it is appropriate to reduce that head by £198.[42]In relation to attendance on others, two hours, twenty four minutes has been allowed. Mr Knapper has explained that that involves liaising with the solicitors for the defendant. He says that there were difficulties with bundles and he had to liaise also with the court staff in the Administrative Court Office here, and it was only as a result of the staff intervening that his summary grounds of defence were put into the bundle. I accept that some time would be taken with such liaison with the defence solicitors and with the court, but it does seem to me that is somewhat on the high side and I would deduct £198 from that sum.[43]The final point that is taken is in relation to the work done on documents and Mr Knapper's claim for 18 hours and 48 minutes in respect of that. There is no doubt that there is a huge amount of documentation in this case having regard to the issues involved, some 700 pages. The original complaint that was made or the original claim that was made was, as I have indicated, a far reaching one which raised several grounds, only two of which in the end were allowed by Beatson J to proceed. But it has been difficult until fairly late, until really the skeleton argument, as I have indicated before, to discern precisely what the case is on those two grounds.[44]I note from the claimant's statement of costs that 44 hours is provided for in terms of work on documents. I take Mr Barlow's point that of course substantially more work is likely to be done by a complainant than by a defendant, but nevertheless as he previously accepted the original claim did deal with allegations of misconduct against Mr Knapper himself, and in my judgment it is proper that serious reading of these documents should have been undertaken by Mr Knapper and not by someone of a lower grade.[45]Accordingly, I am not inclined to disallow any of the works done on the documents and I allow that in full. Anything else? MR BARLOW: Your Lordship is simply just deducting two sets of £198 from this bill of £7,000. JUDGE JARMAN: Yes. Which according do my calculations is £396. Does anyone have a calculation? MR KNAPPER: I do not have the statement of costs – JUDGE JARMAN: £7.030.60… £6,631.60, is that right? MR BARLOW: Yes. JUDGE JARMAN: Yes. Very well. Thank you. Anything else? MR BARLOW: My Lord, yes. I am entitled to ask for permission to appeal your Lordship's decision. It is always rather difficult to do when the court has been emphatic. JUDGE JARMAN: No, do not shrink from your duty, Mr Barlow. MR BARLOW: I am most grateful. In relation to this I’ve renewed the submissions I made previously in this case and submit there is a realistic prospect of the appeal court taking a different view and certainly we wish permission to appeal, specifically in relation to the cost order that your Lordships has made in relation to the interested party because there is a departure from ordinary practice. In our submission, there is a reasonable prospect the appeal court would be interested in looking at the principles applicable to such an approach – JUDGE JARMAN: Before we go on to the litigant in person point and the costs, are you saying you want permission on the substantive – MR BARLOW: Yes. JUDGE JARMAN: Right, on what grounds, please? MR BARLOW: On the ground there is a realistic prospect of the appeal court taking a different view, that indeed the decision was ultra vires (inaudible) rule, that it is cut down by the ability to go to the SDTs provided, and that in relation to the costs there was -- it was ultra vires and a misdirection in law because – JUDGE JARMAN: There is an appeal then against the defendant and the interested party. This really should have been made when Mr Murray was here, should it not, Mr Barlow? He is not here now. MR BARLOW: Well, yes, my Lord. JUDGE JARMAN: Very well. We will see how far we get. MR BARLOW: My Lord, that is the basis upon which we seek permission to appeal in relation to the two matters we were given permission by Beatson J (inaudible) in relation to our skeleton argument, which your Lordship has rejected, each in turn.

Anything else?

JUDGE JARMAN:

[46]I now have to deal with an application for permission to appeal on a substantive finding of dismissal of the two grounds for which Beatson J gave permission, and also on costs in relation to the former.[47]It is said that there is a realistic prospect of persuading the Court of Appeal that the adjudicator's decision was outside his powers. I am afraid I do not agree that there is a realistic prospect of success. In granting permission Beatson J expressed grave doubts as to whether the heads would be sustained, but notwithstanding those doubts gave permission on two points on the basis they were arguable and that of course was the only basis upon which he had to decide.[48]Having listened to argument I am satisfied that it was not arguable and, accordingly, I do not grant permission.[49]In relation to costs, as Mr Barlow accepted, that is primarily a factual matter which I adopt and I do not regard there to be reasonable prospect of success. So I am afraid you must go elsewhere, Mr Barlow, if you wish to pursue that. MR BARLOW: I am grateful, my Lord. JUDGE JARMAN: Anything else? Thank you. May I ask that some bundles be taken back? I think there is also a bundle of authorities someone put in, the defendant's authority, so I will not ask you to take those back, Mr Barlow. Thank you very much.