Bilkus v Stockler Brunton (a firm) [2009] EWHC 1957 (Ch)

[2009] EWHC 1957 (Ch)

Case No CH/2008/PTA/0837

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 30/07/2009

Before

MR JUSTICE HENDERSON

Sitting with Assessors (Costs Judge Rogers and Mr Graham Humby)

Between

MICHAEL BILKUSClaimant

STOCKLER BRUNTON (a firm)Defendant

Mr Tim Chelmick (instructed by HC Solicitors LLP) for Claimant

Mr William Stockler (Solicitor) (instructed by Stockler Brunton) for Defendant

Hearing Hearing date: 11 June 2009

Judgment

Introduction

[1]This is an appeal by the defendants, Stockler Brunton, who are a small firm of solicitors practising in the City of London (“the Firm”), against an order of a costs judge, Master Gordon-Saker, dated 8 December 2008. The order was made in proceedings under section 70 of the Solicitors Act 1974 which had been started against the Firm on 19 August 2005 by a former client, Mr Michael Bilkus, seeking detailed assessment of bills delivered to him by the Firm between 12 April 2001 and 3 December 2004. Pursuant to an order made by Master Bowles on 17 March 2008, the detailed assessment at the hearing before Master Gordon-Saker was confined to a single item on a single bill, namely the sum of £50,000 charged on the Firm’s invoice number 26233/7602 dated 3 September 2004 and described on the bill, as issued, as “Uplift on all bills since April 2001”.

[2]Prior to the hearing, the Firm had notified Mr Bilkus that it would apply for permission to amend the narrative for the charge of £50,000 so that it read “Uplift to reflect the factors set out in The Solicitors’ (Non-Contentious Business) Remuneration Order 1994”. The Firm argued that the original narrative was a mistake, because the earlier bills from April 2001 onwards were all final bills for contentious work which could not subsequently be increased, and only the last bill in the series dated 3 September 2004, which was said to relate largely to non-contentious work, was intended to be subject to the uplift claimed.

[3]The hearing before Master Gordon-Saker took place on 24 September 2008. In a reserved judgment which he handed down on 11 November 2008, the Master refused the Firm permission to amend the invoice. He referred to the guidance given by the Court of Appeal in Polak v Marchioness of Winchester

[1956] 1 WLR 818

, where Jenkins LJ said that a strict view has to be taken to maintain the necessary safeguards, and “[i]t is only in exceptional cases, cases of special circumstances, of genuine mistake of inadvertence, that assistance ought to be given”. After reviewing the evidence, the Master concluded in paragraph 38 of his judgment that the Firm “intended to claim an uplift on all of their bills since April 2001 whether the work was contentious or non-contentious.” He then continued:

“39. In paragraph 5 of his statement Mr Stockler submits that the mistake is manifest because, as a matter of law, no uplift could be charged on a series of final bills in the last bill. However it seems to me that, whatever the legal analysis, this is precisely what was intended – to charge an uplift on a series of bills. The mistake was not the description of the uplift, as the Defendants contend, rather it was the failure to appreciate that no uplift could be charged on these bills because they were final.”

[4]Having refused permission to amend the invoice, the Master then proceeded to consider the issues which had been articulated in counsels’ skeleton arguments, although he recognised that much of the argument on those issues had become redundant in view of his decision not to permit the amendment. The issues were:(1) Was the business to which the £50,000 fee related contentious or non-contentious (it being common ground that no separate value element could be charged for contentious business)?

(2) Did the terms of the retainer between Mr Bilkus and the Firm prevent a value element being charged?

(3) Was the value element reasonable?

[5]In relation to the first issue, the Master held that all of the bills in the series included contentious work, and even the final bill of 3 September 2004 included some contentious work (attending a detailed assessment hearing in relation to a costs order made in the earlier litigation, and considering the possibility of garnishee proceedings and a freezing order). Although he did not say so in terms, it was clearly implicit in this conclusion that the Master accepted the submission for the Firm that most of the content of the final bill related to non-contentious business. As I will explain below, the bulk of the invoice related to the representation of Mr Bilkus’ interests in a share valuation which had been ordered by the court at the conclusion of proceedings under section 459 of the Companies Act 1985 which had been initiated by Mr Bilkus. The valuation led to a very favourable result from Mr Bilkus’ point of view, because his share in the relevant company was valued at £6.6 million, although he would apparently have been prepared to accept only £1.5 million.

[6]The Master also held that, in so far as the uplift claimed related to non-contentious business, it was not claimed “as a value element” and therefore could not be allowed as such under The Solicitors’ (Non-Contentious Business) Remuneration Order 1994.

[7]In relation to the terms of Mr Bilkus’ retainer, it was common ground that the only written record of those terms was to be found in a letter from the Firm (then known as Stockler Charity) to Mr Bilkus dated 25 January 2001. As a matter of construction of the letter, the Master held that the fees chargeable by the Firm were confined to time charges at specified hourly rates plus disbursements. He then said (paragraph 53 of the judgment):

“Where a solicitor and client have agreed an hourly rate at the outset of the retainer, the solicitor cannot then charge an uplift on that hourly rate at the end of the case unless his right to do so has been agreed by the client. In this case there is no evidence that the Claimant agreed to an uplift on the hourly rate or that the parties intended anything other than an all-inclusive hourly rate.”

[8]The Master then referred to, but did not rule upon, an argument for the Firm that the retainer agreed in the letter of 25 January 2001 did not contemplate the non-contentious business required by the valuation exercise, and therefore did not cover it. He said that, whether or not this argument was correct, the uplift purported to be in respect of all of the work performed by the Firm, and in any event all of the bills in the series, apart from the last, were final bills in respect of the periods which they covered.

[9]In view of the conclusions which he had reached, the Master found it unnecessary to consider the third issue, that is to say the reasonableness of the value element claimed by the Firm.

[10]By his order dated 8 December 2008, the Master directed the Firm to pay the disputed sum of £50,000 to Mr Bilkus by 5 January 2009 and to pay his costs of the detailed assessment proceedings which he summarily assessed in the sum of £8,062.50 (including VAT and court fees).

[11]That is the order against which the Firm now appeals, with permission granted by Lewison J at an oral hearing on 11 March 2009, following an earlier refusal by the same judge to grant permission to appeal on paper. In granting permission, Lewison J said he was satisfied that two grounds of appeal were properly arguable. The first ground, in essence, is that the Master was wrong to make a distinction between a value factor and an uplift, because a value factor is an uplift, albeit one which reflects a particular matter. This false distinction led the Master to approach the question of amendment on the wrong basis, and he should have exercised his undoubted discretion so as to permit the withdrawal and substitution of the final bill. Furthermore, even on the basis of the unamended bill, he should have assessed what quantum of uplift was reasonable in relation to the non-contentious work. The second main ground of appeal goes to the circumstances in which the court’s discretion to permit a bill to be amended should be exercised. It was submitted for the Firm that, in principle, a solicitor ought to be allowed to amend his bill where(a) no extra money is sought from the client,

(b) the client is told the reasons for the charge, and

[12]Lewison J also granted permission to amend the grounds of appeal, and in due course amended grounds were served in a form approved by the judge.

[13]On 26 May 2009 Mr Bilkus belatedly filed a respondent’s notice, and on 28 May his counsel, Mr Tim Chelmick, prepared his skeleton argument in opposition to the appeal. The respondent’s notice asks the court to uphold the Master’s order on a number of different or additional grounds. The grounds were said to be attached, but were not in fact included with the copy of the respondent’s notice which was received by the Firm, together with Mr Chelmick’s skeleton argument, on 29 May. The missing grounds of appeal were not received by the Firm until 5 June, only 3 clear days before the date fixed for the hearing of the appeal on 11 June.

[14]The points raised by the respondent’s notice were in summary as follows:(a) the work covered by the final invoice of 3 September 2004, like the work covered by the earlier invoices, was all contentious business;

(b) the uplift purportedly charged in the final invoice was a contingency fee, and impermissible for that reason;

(c) there was at all material times a binding agreement between the Firm and Mr Bilkus as to the hourly rates he would be charged;

(d) the agreed hourly rates took into account all the factors set out in The Solicitors’ (Non-Contentious Business) Remuneration Order 1994; and

(e) there was no legal impediment to interest being awarded on the sum of £50,000 which the Firm had returned to Mr Bilkus.

[15]At the hearing of the appeal Mr Stockler, who is a partner of the Firm and appeared on its behalf, objected to the respondent’s notice and submitted that permission should not be granted for its service out of time. He pointed out, correctly, that pursuant to CPR 52.5(4)(b) it should have been filed within 14 days after the date upon which Mr Bilkus was served with notification that the Firm had been given permission to appeal. That period expired on 27 March 2009 at the latest, so the service on 5 June of the respondent’s grounds for upholding the Master’s order was approximately 10 weeks late, as well as being only 3 clear days before the hearing. He also referred to paragraph 7.5 of the Practice Direction supplementing CPR Part 52, which states that where an extension of time is required the extension must be requested in the respondent’s notice and the reasons why the respondent failed to act within the specified time must be included. The notice does seek an extension of time, but the only explanation given in Part C of the notice is in the following terms:

“The Respondent apologises for the late filing of this notice but asks that permission be granted to serve this notice out of time as this causes no prejudice to the Appellant and additionally does not prejudice the date of the appeal or the time estimate.”

As Mr Stockler rightly pointed out, this explanation gives no reasons why Mr Bilkus failed to act within the specified time, and therefore does not comply with paragraph 7.5 of the Practice Direction.

[16]In these circumstances it seems to me that a fairly strict approach is called for. Compliance with rules and practice directions is not an optional extra, and a lame apology of the type contained in the respondent’s notice is no substitute for a proper explanation of the reasons for non-compliance. On the other hand, I cannot ignore the fact that both the question whether the relevant work was non-contentious and the terms of the retainer were the subject of detailed argument before the Master. Furthermore, it is not clear to me that a respondent’s notice was needed in order to entitle Mr Bilkus to rely on the Master’s findings and conclusions in relation to the retainer, so far as they go. The Firm has had Mr Chelmick’s skeleton argument since 29 May, and it is hard to see how any prejudice could be caused to the Firm by allowing pure points of law arising out of facts which are not in dispute to be argued. It also seems to me impossible for the court to form a rounded view of the grounds of appeal advanced by the Firm without first considering the terms of the retainer and the question whether the work covered by the final bill was contentious business. With these considerations in mind, I permitted counsel for Mr Bilkus to argue those two points, and also made it clear to Mr Stockler that the court would anyway require to hear argument in relation to them as part and parcel of its consideration of the Firm’s grounds of appeal. In my judgment Mr Bilkus should have permission to rely on the grounds stated in the respondent’s notice to that limited extent, but no further.

[17]With this introduction, I will now set out the background facts, so far as they need to be understood for the purposes of the appeal, and I will then deal with the two preliminary issues which I have just identified, namely the terms of the retainer and the question whether the relevant work was contentious or non-contentious business. I should also record that I have had the great benefit of sitting with two assessors, Master Rogers, who is a very experienced costs judge, and Mr Graham Humby, who was formerly senior partner of a London firm of solicitors and is now a senior lecturer at Anglia Ruskin Law School. I express my gratitude to them both for their very considerable assistance.

The Facts

[18]In January 2001 Mr Bilkus retained the Firm to act for him in a dispute about his interest in a company called Clearsprings (Management) Ltd (“Clearsprings”). Clearsprings had been incorporated in 1999. Its principal business was the provision of accommodation and related services to asylum seekers in the UK under a contract with the Home Office. The sole issued share was registered in the name of a former business partner of Mr Bilkus, Mr Graham Ian King. Mr Bilkus’ case was that Clearsprings had been formed by himself and Mr King as a vehicle to carry on the business, and it had been orally agreed between them that they would each hold 50% of the issued shares. He claimed that, in breach of this agreement, no share in Clearsprings had been issued to him and he had also been excluded from its management since August 2000.

[19]In May 2001 the Firm issued proceedings on Mr Bilkus’ behalf in the Chancery Division of the High Court, seeking a declaration as to his entitlement, specific performance of the agreement to constitute him a 50% shareholder, and injunctive relief. The proceedings were successful, and on 2 November 2001, after a seven day trial before His Honour Judge Weeks QC (sitting as a Deputy Judge of the High Court), judgment was handed down in favour of Mr Bilkus. In due course, a share in the company was issued to him, and a nominee of his was appointed to the board.

[20]Now that his interest in the company had been secured, consideration was given to what to do next. The decision was taken to present a petition under section 459 of the Companies Act 1985, alleging that Mr King had conducted the business of the company in a way that was unfairly prejudicial to Mr Bilkus. On 30 January 2002 a petition was issued, naming Mr King and Clearsprings as the respondents. The relief sought was an order that Mr King should sell his registered share in the company to Mr Bilkus, or alternatively that Mr King should purchase Mr Bilkus’ registered share, in either case at a price to be fixed by a valuer agreed between the parties (or, in default of agreement, appointed by the President of the Institute of Chartered Accountants in England and Wales), and that the valuer should be directed to value the share on certain specified assumptions.

[21]On 1 March 2002 Mr King’s solicitors wrote to the Firm making an O’Neill v Phillips

[1999] 1 WLR 1092

offer, expressed to remain open for acceptance for 21 days. The letter conceded unfair prejudice in relation only to Mr Bilkus’ exclusion in August 2000, and offered to purchase his shareholding without discount at a price to be determined by an independent valuer. In the light of this offer, which was not accepted within the 21 day period, various directions were given by the court and the parties continued to negotiate. Eventually, on 15 August 2003 Mr Registrar Baister directed that Mr Bilkus should sell his share to Mr King or Clearsprings, and on 28 October 2003 a hearing took place before Lawrence Collins J in order to determine the issues on which the parties remained divided.

[22]Lawrence Collins J handed down his judgment on the following day, 29 October. In paragraph 18 he recorded that it was common ground that the price to be paid for Mr Bilkus’ share was to be determined by an independent valuer, and not by the court. The valuer would act as an expert, not as an arbitrator, and would be appointed by the court rather than by the parties. The judge went on to decide, among other points, that the valuation should be a single stage process, and that the valuation date should be 1 December 2003. By his order, which was entered on 18 November 2003, he appointed Mr Jim Eales of Ernst & Young LLP to act as the valuer, and directed him to value the share to be sold at 50% of the fair market value of the company as a going concern as between a willing vendor and a willing purchaser, with no discount to reflect the fact that the share was not a majority holding. The order went on to direct Mr Bilkus to sell, and Mr King and Clearsprings to purchase, the share at the value certified by the valuer within 21 days of the valuation being received.

[23]The order made by Lawrence Collins J was a final order, which brought the section 459 petition proceedings to an end. This point was emphasised by the judge in a memorandum which he sent to counsel on 4 November 2003 concerning the draft minute of

[24]The Firm continued to act for Mr Bilkus in relation to the valuation of his share, and the detailed assessment of the costs of the proceedings. The work done in relation to the valuation included the instruction of Grant Thornton to prepare detailed written submissions to the valuer, and the instruction of leading counsel, Mr George Bompas QC, principally to advise in relation to the agreements which underlay Clearsprings’ business: see paragraph 9 of Master Gordon-Saker’s judgment. On 4 August 2004, the valuer valued Mr Bilkus’ share, as I have already said, at £6.6 million. As the Master found, “[t]hat was considered to be a very good result for the Claimant”. The sale of the share at that price was then duly completed.

[25]I now turn to the charges which the Firm made to Mr Bilkus for representing him in the proceedings which I have described. In the Firm’s letter to him dated 25 January 2001, Mr Stockler said that he was the senior partner of the Firm with ultimate responsibility for the matter. Under the heading “Fees”, he described how the Firm’s charges would be calculated:

“Our charges will be calculated mainly by reference to the time spent by me, the other solicitors and executive staff dealing with this matter. This includes advising, attending on you and others, dealing with papers, correspondence, telephone calls, travelling and waiting time. These rates do not include VAT, which will be added to the bill. As a partner my charging rate is £250.00 per hour. The charging rate for an Assistant Solicitor is £205.00 per hour. If any work is undertaken by a Legal Assistant, this will be charged at £150.00 per hour. In addition, we will charge all disbursements incurred on your behalf to include internal photocopying, telephone/facsimile charges, local fares and courier charges. The charging rates that I have quoted are reviewed annually, and therefore if this matter has not been concluded before the next review takes place, they will be subject to an increase. I shall let you know the new rates on the next review which will apply to work done from that date. In matters such as this it is not possible to accurately estimate how many hours of work will be necessary to complete the matter. My firm therefore adopts a policy of charging for each hour (or part thereof).”

The letter went on to say that it was the Firm’s normal practice to ask clients to make payments on account of anticipated costs and disbursements, and interim bills would be delivered at monthly intervals for the work carried out during the conduct of the case.

[26]The letter concluded, in a passage to which Mr Stockler attached considerable importance in his oral submissions:

“Order for Costs I should also explain that at the conclusion of this matter, and in the event that you are successful, it may be that you will be entitled to the payment of your costs by some other party. However, it is rare for the Court assessment procedure, known as “detailed assessment” of costs, to result in the other party having to pay the full amount of your costs. This is a complex subject which I shall be happy to explain further if you wish. In the event that you are successful and the costs of the matter fall to be paid by the other party, you will be able to claim interest on those costs to be paid as from the date on which the order for costs was made. To the extent that any of our charges have not been paid, we will retain any sums paid to us by way of costs or interest thereon. As confirmation that you would like my firm to proceed on this basis, I should be grateful if you would sign the extra copy of this letter and return it to me. At the same time, please forward your cheque made payable to this firm in the sum of £2,500.”

Mr Bilkus duly signed and returned the copy of the letter, writing the words “Agreed and accepted” above his signature.

[27]Despite the Firm’s promise to deliver interim bills on a monthly basis, their frequency soon became rather less regular. However, a series of bills was delivered from 12 April 2001 onwards, and the penultimate bill in the series was dated 7 June 2004. As the Master records in paragraph 10 of his judgment, all of the profit costs in these bills were charged by reference to hourly rates in accordance with the letter dated 25 January 2001, although the rates increased as time passed. There is no indication in any of the bills that the basis of charging changed at any stage, or that the Firm regarded the “matter” referred to in the letter of 25 January 2001 as being at an end. Furthermore, the three bills delivered after the judgment of Lawrence Collins J in October 2003 (dated respectively 30 January, 26 March and 7 June 2004) still treat the matter as a continuing one, and the narrative ends with the words “This matter continues”.

[28]On 5 August 2004, the day after Mr Eales had produced his valuation, Mr Stockler sent a memorandum to Mr Holding-Parsons, a consultant at the Firm who had done much of the work in relation to the matter, saying that he had asked the Firm’s cost draftsman to prepare an up to date bill. He continued:

“It seems to me that we ought to be entitled to charge an uplift for success. It seems to me that you ought perhaps to talk to [the costs draftsman] when he returns about how to do this. I have had a quick look at Cook on Costs and I cannot immediately find anything which deals with the matter … I seem to remember that, in any event, during our last meeting with Michael Bilkus he discussed with me the possibility of my adding something to the bill if I agreed not to press him too hard for existing payment, provided of course we won.”

[29]On 26 August 2004 a draft final bill was prepared, covering the period from 2 June to 26 August. The narrative described the work covered as “representation of your interests in the valuation process which resulted in the Valuer, J R Eales valuing the share at £6,600,000.00”, and went on to give a detailed breakdown. It charged for the work done by reference to hourly rates, but added as part of the profit costs a so-called “Value Factor (¼ %)” in the sum of £16,500, i.e. one quarter of one percent of £6.6 million.

[30]This draft bill was never signed by the Firm, but it was sent to Mr Bilkus, probably by Mr Holding-Parsons, while Mr Stockler was away on holiday. Mr Bilkus queried the “value factor”, and following Mr Stockler’s return from holiday a meeting between them took place on 8 September 2004. In his witness statement dated 15 August 2005, Mr Bilkus described the meeting as follows:

“During that meeting he [Mr Stockler] skirted around the issue of the £16,500 “value factor” and said that he thought that it was only right that he should have £50,000 for getting such a good result. I was initially speechless, Helen [Mr Bilkus’ partner, Helen Bettles] pointed out that this was not at all what had been agreed at the outset and at no point since the beginning of the matter had the possibility of an uplift in addition to the costs set out in the client care letter been raised. I was very surprised at this suggestion and didn’t really know what to do about it at first. I had been very pleased with the result but didn’t see why I should pay so much more than had originally been agreed. I told him I would need time to take it in and would get back to him. … I did not agree to the uplift. I was particularly surprised at this request as I had asked at the outset whether there was any possibility of a deal being struck on the basis of the outcome of the case but the [Firm] had always maintained that this was not possible.”

[31]In his witness statement in reply, dated 12 September 2005, Mr Stockler agreed that a meeting had taken place on 8 September 2004 between himself, Mr Bilkus and Helen Bettles, and said that at the meeting:

“I asked him to agree an uplift of £50,000 on the final bill for the valuation work, based on the success we had achieved in obtaining a valuation of £6.6 million, even though Mr Bilkus had been prepared a few months before to sell his share to Mr King for £1.5 million.”

[32]On the next day, 9 September 2004, Mr Stockler wrote to Mr Bilkus, enclosing the Firm’s final invoice dated 3 September 2004 (mis-described in the letter as “an account for the period to 26 August 2004”). The narrative on this invoice was much the same as the narrative on the draft invoice of 26 August, but the number of hours charged for the services of Mr Holding-Parsons had substantially increased (94 hours 45 minutes instead of 70 hours), and instead of the “value factor” of £16,500 a sum of £50,000 was charged, described as “Uplift on all bills since 2001”.

[33]In his letter, Mr Stockler said this:

“I refer to our meeting yesterday. … In accordance with our discussion, I have incorporated an uplift figure of £50,000. This relates to both of the cases since I was first instructed in the year 2001. The total profit costs (excluding disbursements such as Counsel’s fees) on all bills in relation to the whole of the Clearsprings matter from day one have amounted to approximately £310,000. Although one cannot be precise, because the rates of charge have changed over the years, an uplift of £50,000 is approximately equivalent to 16%. In order to give you the maximum possible information, I can do no better than to attach copies of a number of pages out of “Cooke [sic] on Costs”

. The book is unfortunately a little out of date, but the principles referred to in it still apply. … I quite accept that each case must be looked at on its own merits, but I do believe that an uplift of such a relatively small percentage (16%) in the context of a highly complicated and extremely valuable claim is far from unreasonable. I hope that you will agree that we carried out an excellent job for you and recovered more than you expected.”

[34]On 14 September 2004 Mr Bilkus replied, saying that he would consider the Firm’s request but he had not agreed the additional charge of £50,000.

Was the valuation exercise contentious business?

[35]I will begin with the question whether the valuation of Mr Bilkus’ share in Clearsprings pursuant to Lawrence Collins J’s order of 29 October 2003 was contentious business, or whether, as Master Gordon-Saker implicitly decided, it was non-contentious business.

[36]The relevant definitions are contained in section 87(1) of the Solicitors Act 1974. “Contentious business” is defined as meaning “business done, whether as solicitor or advocate, in or for the purposes of proceedings begun before a court or before an arbitrator, not being business which falls within the definition of non-contentious or common form probate business contained in section 128 of the Supreme Court Act 1981.” “Non-contentious business” is defined as meaning “any business done as a solicitor which is not contentious business as defined by this subsection.” The definitions apply “except where the context otherwise requires”. Neither side has contended that there is any relevant context which might otherwise require in the present case. Accordingly, the critical question is whether the work done by the Firm in connection with the valuation of Mr Bilkus’ share was work done “in or for the purposes of proceedings begun before a court”. If it was, the work was contentious business; if not, it was non-contentious business. “any business done as a solicitor which is not contentious business as defined by this subsection.”

[37]To the question thus posed there can in my judgment be only one answer. The work was done both in and for the purposes of proceedings begun before a court. The section 459 petition proceedings were clearly proceedings begun before a court (by the initial presentation of the petition in the Companies Court), and the valuation was an integral and essential part of ascertaining the remedy to which the petitioner, Mr Bilkus, was held by the court to be entitled. There could be no sale of his share to Mr King until the price to be paid had been ascertained, and the sole purpose of the valuation was to ascertain that price. This is reflected in the terms of the judge’s order of 29 October 2003: the share was not to be sold until 21 days after the valuation had been received.

[38]It is true that the value of the share was not decided by the court, and the order of 29 October 2003, as the judge emphasised to counsel, was a final order. From one point of view, therefore, his order brought the petition proceedings to an end. However, for the purposes of the definition of contentious business, the proceedings must in my view be regarded as continuing at least until the relief awarded to the successful party had been ascertained. The valuation was part and parcel of this process, and although it was not performed by the court, it was performed pursuant to directions given by the court, and as a necessary step in working out the relief awarded by the court. The valuation was also, in itself, highly contentious, and as a matter of common sense it formed part of the single dispute between the parties which began with the presentation of the petition and ended only when the purchase price of Mr Bilkus’ share had been ascertained and paid to him upon completion of the sale.

[39]A clear distinction may therefore be drawn, in my opinion, from cases where the court has decided that a particular item of property is to be transferred by one party to another, for example in ancillary relief proceedings following a divorce or in proceedings for specific performance of a contract, and where all that remains to be done is to give effect to that decision by carrying out the necessary conveyancing formalities. It may perhaps be the case, as Mr Stockler submitted, that work of such a nature should be regarded as non-contentious business, although I would not for myself regard even that proposition as at all clear. After all, even if the relevant proceedings are properly to be regarded as at an end, I find it hard to see why the work should not still be work done “for the purposes of” proceedings begun before a court. The focus of the definition is on the time when the proceedings were begun, not the time when they ended. Provided the proceedings were begun before a court, it is surely then a question of fact in any given case whether work is subsequently done either in or for the purposes of those proceedings.

[40]Apart from his suggested analogy with matrimonial proceedings, Mr Stockler submitted that a distinction must be drawn between work which is done for the purposes of proceedings begun before a court, and work which is merely the result of such proceedings which have come to an end. He submitted that the force of the point would be more obvious if, in the present case, Mr Bilkus had chosen to instruct a separate firm of solicitors to represent him in connection with the valuation of his share. I am unable to accept these submissions. As I have already explained, the Firm’s work in connection with the valuation was in my view done both in and for the purposes of the petition proceedings, and it would make no difference if a different firm had been instructed by Mr Bilkus. What matters is the relationship between the work which is done and the petition proceedings, not the identity of the solicitor by whom the work is done. Furthermore, it seems to me inescapable that the valuation work was, at the very least, performed for the purposes of the petition proceedings, because it was an essential step in working out the relief to which Mr Bilkus was entitled.

[41]The point is ultimately a fairly short one, and I will not further elaborate it. For the reasons which I have given, I have little hesitation in deciding it in favour of Mr Bilkus. The consequence, as Mr Stockler rightly recognised, is that for this reason alone there was no lawful basis upon which an uplift of £50,000, or any lesser amount, could lawfully be charged by the Firm, in the absence of a conditional fee agreement entered into between the Firm and Mr Bilkus in accordance with the regulations then in force. It also follows that, for this reason alone, the Firm’s appeal must be dismissed.

The terms of the retainer

[42]In view of the conclusion which I have already reached, I can deal with this question briefly. All of the work carried out by the Firm for Mr Bilkus, including the work connected with the valuation, was contentious business. It is common ground that a contentious business agreement was entered into between Mr Bilkus and the Firm on the terms set out in the Firm’s letter of 25 January 2001. A contentious business agreement between a solicitor and his client must be made in writing: see section 59(1) of the Solicitors Act 1974. There was no subsequent written variation of the terms contained in the letter of 25 January 2001, and those terms therefore continued to apply throughout. By virtue of section 60(4):

“A contentious business agreement shall be deemed to exclude any claim by the solicitor in respect of the business to which it relates other than – (a) a claim for the agreed costs; or (b) a claim for such costs as are expressly excepted from the agreement.”

Accordingly, the only costs that the Firm was entitled to claim from Mr Bilkus in respect of the contentious business which it carried out for him, including the work on the valuation, were hourly charges for the work undertaken, at the rates notified to Mr Bilkus from time to time, together with disbursements incurred on his behalf. (a) a claim for the agreed costs; or (b) a claim for such costs as are expressly excepted from the agreement.”

[43]Even if I am wrong in my conclusion that the valuation work was contentious business, the Firm would in my judgment be in no better a position. The only reasonable inference that could be drawn from the sequence of bills submitted to Mr Bilkus, and the absence of any evidence of further discussions or agreements between Mr Bilkus and the Firm about the basis on which he was to be charged, would be that the original contentious business agreement was superseded by a non-contentious business agreement relating to the valuation of the share, upon the same terms for remuneration as before. I am wholly unable to accept Mr Stockler’s submission that the parties should, in that situation, be regarded as having entered into a separate non-contentious business agreement which, in breach of section 57(3) of the 1974 Act, was not in writing, in respect of which nothing had been agreed, either expressly or by implication, as to the Firm’s remuneration, and in respect of which the Firm was therefore entitled to charge Mr Bilkus a reasonable amount having due regard to the factors set out in The Solicitors’ (Non-Contentious Business) Remuneration Order 1994. This submission was in my judgment a desperate attempt to provide a justification, after the event, for the £50,000 uplift that the Firm misguidedly sought to charge, in clear breach of the only written agreement which it had ever entered into with Mr Bilkus. I should add that Mr Stockler did not seek to maintain the argument, which had been advanced on the Firm’s behalf to the Master, that the word “mainly” in the letter of 25 January 2001 should be read as permitting the Firm to make charges at other than hourly rates. His argument was, rather, that the terms in the letter applied only to the matter in which the Firm was initially instructed, and in particular could have no application to non-contentious business.

Amendment of the 3 September 2004 invoice

[44]In conclusion, I wish to make some comments on the Firm’s application to amend its final invoice to Mr Bilkus dated 3 September 2004. It will be remembered that this invoice, as signed and sent to Mr Bilkus, sought to charge £50,000 as an uplift on all bills since April 2001. It had been preceded by the unsigned draft bill dated 26 August 2004, which purported to charge a “value factor” of £16,500. By a letter dated 14 September 2005, the Firm informed Mr Bilkus’ present solicitors that, at the first hearing of his application for detailed assessment, the Firm would be applying to withdraw the invoice dated 3 September 2004 and replace it with an invoice in identical form, but with the £50,000 now being charged as an uplift to reflect the factors set out in The Solicitors’ (Non-Contentious Business) Remuneration Order 1994.

[45]My two assessors are firmly of the view, which I respectfully share, that this case provides a suitable opportunity to remind the profession of the guidance given by the Court of Appeal in Polak v Marchioness of Winchester, loc.cit., to the effect that permission to amend a bill (or, which comes to the same thing, to allow a bill to be withdrawn and substituted with a corrected bill) should be granted only in exceptional circumstances. Polak was a case where the bill of costs originally submitted by the solicitors to their client included various items of disbursements in respect of counsel’s fees which had not in fact yet been paid. This was pointed out as soon as the matter came before the taxing master, and the solicitors then asked for the taxation to be adjourned so that they could pay the fees in question and then ask for the bill to be corrected. This was then done, and the matter subsequently came before Pearson J who made the order sought. On appeal by the client, the Court of Appeal (Jenkins and Hodson LJJ) reviewed the relevant authorities and held that the court had jurisdiction to make an order of this nature, and the exercise by the judge of his discretion could not be faulted. However, Jenkins LJ said at 827:

“I entirely agree with the judge when he said that one has to take a strict view to maintain the necessary safeguards, and nothing I say is to be regarded as suggesting to solicitors that they can be careless or unbusinesslike in a matter such as this, and then as of course apply for and receive the assistance of the court. It is only in exceptional cases, cases of special circumstances, of genuine mistake of inadvertence, that assistance ought to be given. I agree with the judge that this is a case which is very near the borderline; but he has found it one in which he came to the conclusion that the discretion could properly be exercised in favour of the solicitors. In my view he was justified in coming to that conclusion and it would not be right for this court to interfere with his exercise of that discretion.”

Hodson LJ (at 828) expressed his entire agreement with the judgment of Jenkins LJ. I note in passing that the words “genuine mistake of inadvertence” in the report are a little puzzling, and may perhaps be a typographical error for “genuine mistake or inadvertence”.

[46]The contrast between a case like Polak v Marchioness of Winchester and the present case could hardly be more stark. In Polak there was no question but that the client was, in principle, liable to pay for counsel’s fees as disbursements incurred on her behalf. The error in the bill was the product of a series of administrative errors, which reflected no credit on the efficiency of the solicitors’ office, but were due to bona fide mistake and inadvertence: see the judgment of Jenkins LJ at 820. If the solicitors had not been permitted to amend the bill, the client would have obtained an unmerited windfall. In the present case, by constrast, the purported uplift of £50,000 was objectionable for at least three reasons. First, it was charged in breach of the terms of Mr Bilkus’ retainer of the Firm. Secondly, it purported to charge an uplift in respect of a series of earlier bills, all of which were final as delivered, and not merely in respect of the bill of 3 September 2004. Thirdly, it purported to charge an uplift in respect of contentious business.

[47]In paragraph 5 of his witness statement, Mr Stockler sought to explain away the error on the face of this invoice by saying that there was no cause for any uplift to any of the bills apart from those relating to “the hugely successful valuation process”, and there was no way in which the Firm could retrospectively have turned the previous series of final bills into interim ones. Mr Bilkus could have been under no illusion about what the £50,000 uplift was intended to represent, because Mr Stockler had sought his agreement to charge it at their meeting on 8 September 2004 on the basis that it was a success fee for the valuation work. As Mr Stockler said:

“What I was trying to point out in the text was that £50,000 was a small fraction of all the costs he had had to pay since the beginning to achieve a highly successful result, not that the £50,000 related to those earlier costs.”

[48]In his oral submissions, Mr Stockler returned to this theme. He frankly acknowledged that he had been in error in supposing that it was possible to charge an uplift for contentious work, and said that he tried to make the £50,000 charge “look more appetising” to Mr Bilkus by treating it as an uplift on all of the bills since April 2001. I do not find this explanation entirely easy to reconcile with what Mr Stockler said in his witness statement, but whatever Mr Stockler may or may not have subjectively intended, there can be no doubt that the bill would have been read by any reasonable recipient as intended to charge the uplift on the whole series of bills since April 2001. A mistake of that character in my judgment evinces a serious disregard of the Firm’s contract with its client and the relevant provisions of the Solicitors Act 1974. It is not the kind of mistake from which any firm of solicitors should expect to be relieved, let alone a firm based in the City of London and holding itself out as capable of dealing with complex High Court litigation.

[49]I emphasise that this is not just a matter of discipline for its own sake. It is essential that the terms upon which a solicitor charges his client should be recorded in writing, and that a solicitor should not attempt to charge fees which are contrary to the terms of his retainer. It is also essential that, in all save exceptional circumstances, the client should be able to rely on the accuracy, both factual and legal, of bills which he receives from his solicitor. The particular mischief in the present case is that the Firm sought to charge an unjustified success fee of £50,000, in circumstances where it was clear that the client had not agreed to this. Many clients might have been willing to pay a success fee of £50,000 following a valuation which had been so successful, whether or not they were legally obliged to do so. However, Mr Bilkus was fully entitled to stand on his legal rights, and to insist that the Firm should be paid the fees which had been agreed, and no more. He may well have reflected that the Firm would have been unlikely to agree a reduction in its fees if the valuation exercise had gone against him. In any event, the important point, as it seems to me, is that the Firm deliberately sought to charge a substantial fee by way of uplift which had no possible justification. In those circumstances, the Master was in my judgment quite right to refuse the Firm permission to amend the invoice.

Conclusion

[50]For the reasons which I have given this appeal will be dismissed.

order

“There should not be an express liberty to apply. This is a final order, and the extent to which either party may make any further application should be left to the general rules.”