Helvadjian v Ambrose Appelbe Solicitors [2009] EWHC 90133 (Costs)

Case No PTH 0705363IN THE HIGH COURT OF JUSTICESUPREME COURT COSTS OFFICEVenue Clifford’s Inn, Fetter LaneLondon, EC4A 1DQDate 30 January 2009
Before
CHIEF MASTER HURST, SENIOR COSTS JUDGE
Between
CAROLINE HELVADJIANClaimantAMBROSE APPELBE SOLICITORSDefendant
The Claimant in Person for in personMr Richard Morgan of Ambrose Appelbe for DefendantHearing Hearing dates: 15 October 2008, 19 November 2008 and 14 January 2009
Approved Judgment.............................

Senior Costs Judge:

[1]On 24 January 2007 Master O’Hare made an order in the following terms:
“1. A detailed assessment must be made of the profit costs claimed in the bill as set out in the schedule hereto delivered to the claimant by the defendants. 2. On making the detailed assessment the court must also assess the costs of these proceedings and certify what is due to or from either party in respect of the bill and the costs of these proceedings. 3. Until these proceedings are concluded the defendants must not commence or continue any proceedings against the claimant in respect of the bill mentioned above. 4. Upon payment by the claimant of any sums certified as due to the defendants in these proceedings, the defendants must deliver to the claimants all the documentation in the defendant’s possession or control which belong to the claimant.”
[2]The order went on to give directions for the service of a breakdown of each bill of costs. The schedule sets out the twelve bills of costs which are to be the subject of detailed assessment. The bills numbers are: 14143, 14178, 14199, 14277, 14298, 14332, 14379, 14408, 14444, 14526, 14744, 15113.[3]This detailed assessment came before me, having previously been heard before Master O’Hare. The Defendant firm appealed that decision, and the matter came before Mr Justice Evans-Lombe on 13 May 2008. The Judge set aside the Master’s order, but imposed a cap on the amount recoverable by the Solicitors. The order made by the Judge on appeal reads:
“IT IS ORDERED (1) that permission to appeal be granted and the appeal be allowed (2) that the Order of Master O’Hare be set aside (3) that the detailed assessment be continued in the Supreme Court Costs Office before a Costs Judge other than Master O’Hare (4) that in no circumstances shall the amount payable by the Respondent to the Applicant exceed £30,000 in the light of the price indication of 21st April 2006 given by the Applicant to the Respondent but that this cap shall not apply to any costs found in the course of such detailed assessment not to have been contemplated by the Applicant in giving the said price indication AND THE COURT makes no Order for the costs of this hearing.”
AND THE COURT makes no Order for the costs of this hearing.”[4]Following the Judge’s order the matter was referred to me to deal with the detailed assessment of Ambrose Appelbe’s bills. The first hearing took place on 15 October 2008, and on that date I made a finding as to the extent of the Solicitor’s retainer, and the estimate which the Solicitors had given in respect of it, namely the appeal by Ms Helvadjian’s former husband against the order of District Judge Green (the Green Order), and her cross-appeal against the same order, together with the potential appeal against the order of His Honour Judge Compston of 24 March 2006 (the Compston Order). I explain the reasons for my decision below. The matter was then adjourned part heard to 19 November 2008, and the bills and papers were gone through in considerable detail. It became apparent that there was a conflict as to the exact instructions which Ms Helvadjian had given to Ambrose Appelbe. The matter was therefore further adjourned part heard, with directions that the Defendant firm should prepare a typed version of Mr Morgan’s handwritten attendance note of the conference with Counsel, which took place on 19 May 2006. Neither I, nor Ms Helvadjian could read the handwriting, and Mr Morgan himself found it difficult. A typed copy of the note was produced in accordance with the direction, but even this has numerous passages which are marked “illegible”.[5]The Claimant who is a litigant in person, in accordance with a further direction, prepared a witness statement setting out her position with regard to her proposed appeal against the Compston order. The matter was re-listed for 14 January 2009.[6]On that date Ms Helvadjian gave sworn evidence in accordance with her witness statement, and was cross-examined by Mr Morgan. Mr Morgan also gave evidence and was cross-examined by Ms Helvadjian. I deal with the evidence in greater detail below. Having heard the evidence judgment was reserved.

BACKGROUND

[7]On 21 April 2006 Ms Helvadjian, having been represented in her divorce proceedings by B D Laddie Solicitors, rang Ms Lisa Bolgar Smith of Ambrose Appelbe because B D Laddie had told her they could no longer act for her because of a conflict of interest. Two conflicts have arisen as to the extent of the retainer, ie, as to what Ms Helvadjian asked the Solicitors to do on her behalf. The first is the extent of the initial retainer: did it relate both to the appeal and cross-appeal against the Green order dated 30 September 2005 as Mr Morgan argued; or did it relate in addition to the appeal against the Compston order of 24 March 2006?[8]The second conflict, which only arises if the original retainer covered the appeal of the Compston order, is whether or not Ms Helvadjian instructed her solicitors to proceed with that appeal, or to do nothing about it. The handwritten attendance note dated 21 April 2006 of Lisa Bolgar Smith records that: “On 24, 25 and 26 of May at the Royal Courts of Justice there is the husband’s appeal and the client’s cross-appeal, which will take two days reading. The client has no legal background. There have been a series of hearings. [There is then an illegible line] No skeleton argument she says, other than for final hearing, lever arch files in 6 to 7 days.”

[There is then an illegible line]

[9]That handwritten note is then translated into a typed attendance note, which says:
“Client phoned. She has an appeal at the Royal Courts of Justice on 24, 25 and 26 May 2006. It consists of 5 lever arch files full of papers and she reckons there is at least 2 days reading. The final hearing listed between 6 and 7 days. It is the husband’s appeal and also the client’s [cross] appeal. The note says “cost appeal”, but this is obviously “cross-appeal”
. She has got no legal background. She was acting in person. There are a series of hearings following the final hearing, for example directions for the sale of the house. She has got to prepare a skeleton argument. She did have Neil Russell of B D Laddie acting for her but he then discovered there was a conflict as he knew Melvin Langley, who was somebody who had been previously involved in the case. Client asked for an estimate of our fees for representing her. I told her our initial estimate was £25,000 and we already potentially held Mr Ian Cook, a renowned barrister of 1 Kings Bench Walk to cover the appeal. The client will put us in funds on Monday. I put her through to Van presumably in accounts who gave her our Barclays client account details. Client will also come in on Monday to sign a client care letter and bring us the papers.”[10]The Solicitors, through Mr Morgan who was an assistant solicitor with the firm and is now an associate solicitor, believed, so he says, that the client was referring to two appeals, namely the husband’s appeal and her own cross-appeal. Ms Helvadjian says, in her mind, there was: on the one hand an appeal, namely her husband’s appeal and her own cross-appeal, both against the Green order; and on the other hand an appeal against the Compston order, so that when she spoke of there being two appeals, that is what she had in mind. The Solicitors for their part say, they understood she was referring only to the husband’s appeal and the cross-appeal against the Green order.[11]There was a meeting on 24 April 2006 between Lisa Bolgar Smith and the client at which Mr Morgan was present for part of the time. Unfortunately, the attendance note for that meeting is not available. If it ever existed, we no longer have it. There is therefore no contemporaneous note of what took place on that day. Ms Helvadjian accepts that she did have a meeting, which lasted about an hour. On the same day, 24 April, a client care letter was sent to Ms Helvadjian setting out the rates for partners and assistants and asking for a sum on account of £25,000.[12]At the meeting on 24 April Ms Helvadjian spent a certain amount of time on the telephone to her bank arranging a transfer of money into the Ambrose Appelbe bank account, and in fact £24,000 was transferred. It is recorded in the ledger on 25 April. On the same date Messrs B D Laddie sent a letter to Ms Lisa Bolgar Smith saying:
“We understand you are meeting Caroline Helvadjian at 11.30 today in order to take on her case. Caroline has requested that I send you her files which I now do. In a plastic envelope on top of the files is a further application notice which has not been served. If I can provide any further assistance to you please do not hesitate to contact me.”
[13]On the same day B D Laddie wrote a second letter enclosing a copy letter from Preston & Co, the former husband’s solicitors, which said:
“On 21 April just minutes before 4 pm your client served by fax an amended notice of appeal which she signed as a litigant in person. We are prepared to accept this document as her final notice of appeal. However given it was signed herself as litigant in person would you please confirm you are still acting.”
[14]The plastic envelope containing a “further application notice” is accepted by Mr Morgan to have contained the application for permission to appeal against the decision of His Honour Judge Compston.[15]I have explained (at paragraphs 7 and 8 above) what the conflict between the parties is, and the difficulty that the absence of the attendance note causes. What I have seen is a letter from Neil Russell of B D Laddie to Mr Anthony Preston of Preston & Co dated 13 April 2006 and I read extracts:
“I have received a substantial number of documents from my client although I understand that further documents are to be provided, I have not yet completed my review of the papers. I have arranged a conference with counsel on 21 April, at which time I will have reviewed the papers, and obtained counsel’s view generally with regard to the appeal and cross-appeals. I thank you for letting me have a copy of the order made on 24 the subject of an appeal. I am still looking through all the appeal March 2006 although I understand that the order itself may be notices.”
[16]The order of 24 March is the Compston order. The letter refers to “the appeal and cross appeals”. This supports Ms Helvadjian’s submissions.[17]In the absence of any attendance note of 24 April, I prefer Ms Helvadjian’s version of events, and I am strengthened in that by the letters from B D Laddie; one to the other side referring to the appeal and cross-appeal, and specifically mentioning the appeal, or the possibility of an appeal against the Compston order. That is further borne out by the letter to Ambrose Appelbe of 24 April, which says that in a plastic envelope on top of the files, there was “a further application notice”, which we now know was the application for permission to appeal. This was delivered from B D Laddie, either before or at the time when Ms Helvadjian was meeting Ms Lisa Bolgar Smith. If the original estimate had been incorrect, that was the opportunity to say:
“When we said £25,000, we were not including the appeal against the order of HHJ Compston.”
[18]So far as we know nothing like that was said, and therefore, I find that the estimate was given on the basis that the Solicitors would take over all the work which B D Laddie had been doing, ie, the husband’s appeal against the Green order; the cross-appeal and the appeal against the Compston order. THE EVIDENCE 19. Ms Helvadjian

THE EVIDENCE

[19]In her witness statement Ms Helvadjian exhibited a copy of her email dated 19 May 2006 in response to an email dated 17 May 2006 from Mr Morgan. In that email Mr Morgan had stated:
“I understood that we were not pursuing the appeal issued by you on 7 April regarding [the Compston order].”
[20]He commented in some detail on the contents of the Judge’s order, and concluded:
“It is not worthy of appeal …”
[21]Ms Helvadjian’s response, sent on 19 May 2006, was received by Ambrose Appelbe at 10.09 am prior to the conference with counsel Mr Ian Cook. The email states: “When you rang last Friday, I understood it was to inform me that my appellant’s notice had not been served, which worried me. You advised not to follow that appeal, but I discussed with you why I wanted the appeal served. At no point have I not wanted the appeal served. I still want the appeal served unless there is another way to deal with the history of the hearings between 13/12/05 and 24/3/06 and how Mr Preston has misled the court over and over again. It is because of this appeal that I have instructed solicitors. It was my intention to serve myself, but I thought it better that my solicitor prepare skeletal argument. I have just received a note from the court regarding this giving until 26/5/06 to do so. I have faxed to you, otherwise there is costs implication to me. It is paramount as discussed in our meeting with Lisa Bolgar Smith that Mr Preston does not act as the conveyancer in this case. He has requested the deeds off Halifax and I do not know whether this has affected my mortgage offer from them and thus my appeal … Please can you confirm that he will be removed as it would be unreasonable for my conveyancer to be his solicitor, or this point will be appealed, particularly as what will happen if cross-appeals are thrown out of court. I can see no reason to change DJ Green’s order in regard to conveyancer. … My appeal is not valid if, I have to pay any costs whatsoever. I can only afford the £180,000 provided they have not jeopardised my mortgage offer with Halifax, as no-one else will lend me that amount of money. However, I am not sure about this point as I am appealing the order that Alpine Bond Ltd should be investigated and Mr Williams’ beneficial interest noted and considered.” (bundle C, page 131)[22]Ms Helvadjian submitted that the email of 17 May from Mr Morgan demonstrated that Ambrose Appelbe had not understood the issues for appeal, and that they had at no point during the time that she instructed them responded appropriately or accurately to them. She continued:
“I had supplied the transcript of hearing as well as a document from the PSU stating I had not been allowed to give my submissions in court and I wanted a response to what took place during the hearing versus the overwhelming evidence I had handed to them, demonstrating the submissions of the other side, were wholly wrong. This was my main reason for instructing solicitors.”
[23]Ms Helvadjian stated that she had made the application now before me because she believed that her solicitors had charged her for handling papers relating to the appeal against the Compston order, but had not acted on her instructions.[24]On 19 May 2006 the conference with counsel took place. Ms Helvadjian is adamant that during the course of the conference with counsel she was asked to withdraw her cross-appeal against the Green order, but at no point did she agree to withdraw the appeal against the Compston order.[25]On 24 May, prior to the hearing of the appeal against the Green order, Ms Helvadjian attended the offices of Ambrose Appelbe and discussed two points at length, firstly the appeal against the Compston appeal, and secondly the preparation of property details showing the difference between the price of three bedroom properties of different sizes in Hampstead Garden suburb.[26]In her witness statement Ms Helvadjian stated:
“I write this note to confirm that I wanted AA to serve a skeletal argument in regard to the appeal up to the last day allowed, ie 26/5/06. I could not do it myself as they had all the relevant documentation and I wanted a professional job. I was confused somewhat over the issue that Mr Cook [counsel] and Mr Morgan informed me that they could deal with the main cause for concern on the HHJ Compston order, that of Mr Preston acting as conveyancer at the end of the cross-appeals.”
[27]Mr Cook did attempt to raise this matter before Mr Justice Mumby at the end of the appeal, but he would not deal with the matter.[28]Later in her witness statement Ms Helvadjian states:
“I forwarded £24,000 of the £25,000 discussed in advance, after which I found that AA had missed important deadlines (I got an extension of time). HHJ Compston’s appeal was discussed at the first meeting with Lisa Bolgar Smith at length when I visited her offices in April. AA did not provide me with a suitable alternative way to deal with this legal battle I had on my hands and to which I had openly stated in court, I would need to seek solicitors help to deal with it for me.”
[29]The conference with counsel on 19 May 2006 is recorded in three separate notes, one headed “Minutes of meeting with counsel” prepared by counsel (bundle C, page 116 to 121), another by Mr Morgan (bundle C, page 149 to 160). It was this attendance note which Mr Morgan transcribed in an effort to make it more understandable. The final attendance note was taken by James Freemantle (bundle C, page 161 to 171). That note is relatively full and legible.[30]In cross-examination Ms Helvadjian was taken to counsel’s minutes of meeting, and to particular passages:
“1. Client was informed by Richard Morgan that Ian Cook would advise her on the evidence in his possession (being the five volumes of the final trial bundle, a bundle of appeal papers and a further bundle of appeal papers put together by the client) and as he saw it. The client was advised that Ian Cook would work to whatever instructions the client wanted. … 7. Ian Cook again advised her after she persisted along the avenue of discussing the marketing of 40 Southway that the marketing of Southway was not an issue. Again, he reiterated that in his view she would not be awarded a larger percentage than she had received from the order of [DJ Green] of 30 September 2005. … 25. The client again stated that there WAS evidence of serious trading and they did not consider this at the hearing. Ian Cook again advised that they did take all this into consideration and there was no evidence she could show him. 26. Ian Cook advised the client strongly at this point that he was “deadly serious” that the client must stop issuing appeals on a whim and that they had consequences. Ian Cook again stated they should withdraw their appeals and by doing so seek costs against the other side. 27. The client asked what evidence she could produce that would convince the court. Ian Cook stated that Ambrose Appelbe would be able to advise her on that, but that this was not the time to discuss the same. 28. The client and Ian Cook proceeded to discuss the issue over the value of the house and how the offer of £1.35 million had been withdrawn, which in Ian Cook’s eyes was a great shame as it showed a substantial rise in the value of the property. Ian Cook asked if she could raise the monies to buy out her ex husband’s share of the property and also whether she could afford the repayments of such a remortage. The client could not at this stage. 29. Ian Cook consoled the client that she had been making her points forcibly but that he was still not convinced by them. He reiterated that they must focus on the relevant issues as they were getting side tracked with issues not relevant to this APPEAL. … 36. The client agreed that we would withdraw all her appeals. Ian Cook stated he would lodge a position statement with the court by 4 pm on Monday stating that we were withdrawing our appeals and that we would be seeking to uphold the order given by DJ Green for the reasons stated in her judgment. He would also see if he could reduce the time estimate for the hearing to two days.”
[31]Ms Helvadjian stated that she had agreed in the conference to withdraw the cross-appeal against the Green order. The reference in the minute to “all appeals” referred to a number of amendments which she had made. The husband’s notice of appeal was dated 13 October 2005. Ms Helvadjian’s cross-appeal was dated 14 October 2005. She had also lodged a response to the husband’s appeal dated 24 November 2005 and a further notice of appeal on 27 November 2005. Ms Helvadjian amended her notice of appeal on 3 March 2006, and submitted grounds to support her application on 16 March 2006. In the order of HHJ Compston, dated 24 March 2006, he directed that Ms Helvadjian should “either confirm reliance on five existing notices of appeal, or serve upon the husband’s solicitor one complete notice in lieu of the five existing notices”. She had amended certain notices of appeal and there had been an error on one, and so she had issued a further one. It was therefore possible to suggest that there were five appeals in all against the Green order (see Schedule of Appeal Papers, bundle C, pages 29 to 32). Ms Helvadjian was adamant in her evidence that all she had agreed to withdraw was her cross appeal against the Green order. She did not agree to withdraw the appeal against the Compston order.[32]Mr Morgan then took Ms Helvadjian to his note of the conference, and in particular to a passage at page 160, which is transcribed as follows:
“Have to go with your decision. My advice. Don’t doubt your advice but it upsets. Best chance to keep good order. focus. … Complete set of Calderbanks. Written b4 sum adjudicated on costs. * - full set of (illegible). 21 March”
[33]Again Ms Helvadjian was adamant that this related to the cross-appeal against Green order. She pointed out that there is no mention of the Compston order. She agreed that counsel thought the order of 30 September 2005 the Green order was a “good order”.[34]Ms Helvadjian was then taken to a separate note on page 160, which is transcribed as follows:
“4 pm Monday argument. – not appeal. – illegible. – seek uphold.”
[35]The first line refers to the fact that counsel needed to lodge his skeleton argument before Mr Justice Mumby in support of the appeal against the Green order, which it had been agreed in conference, Ms Helvadjian now wished to uphold.[36]Ms Helvadjian was asked about her instructions that her solicitors should file evidence, re Amazing Jeans, evidence which had not been put before District Judge Green. Those are the matters covered in counsel’s minute at paragraphs 25 to 27. She felt there was evidence that could be adduced.[37]With regard to the raising of the question whether or not Mr Preston should be permitted to carry out the conveyancing, pursuant to the Compston order, this was raised by Mr Cook at the end of the appeal before Mr Justice Mumby. He declined to deal with it. Ms Helvadjian stated that it was suggested by Ambrose Appelbe that the matter should be raised at this point, and that it was not her decision. She wanted her skeleton argument to be put in. The appeal ended on 26 May, which was the deadline for lodging the skeleton argument. She asserted that Mr Morgan did know that she still wanted to appeal. She asked if she could have her documents so that she could prepare and file a skeleton argument in the short time remaining. She was, however, informed that the papers would not be available until the following week. As a result her appeal against the order of HHJ Compston was struck out. Richard Morgan[38]Mr Morgan identified the note of the conference commencing at bundle C, page 161 as being in the handwriting of James Freemantle. He said it was his belief that neither he nor his firm were given clear instructions to press on with the appeal against the Compston order, he acted only on clear instructions. It was counsel, Mr Ian Cook, who advised making the application to Mr Justice Mumby about the conveyancing point. Mr Morgan was unable to explain on what basis counsel had felt that the Judge would be willing to entertain such an application.[39]Mr Morgan confirmed that he did not prepare or submit any documentation in relation to the appeal against the Compston order. Referring to Ms Helvadjian’s email of 19 May 2006 (bundle C, page 131) Mr Morgan stated that he had no clear instructions to press the appeal or to prepare any documents. His instructions were not for Ambrose Appelbe to prepare and lodge any papers, and were to withdraw Ms Helvadjian’s cross-appeal, and seek to uphold the Green order. He pointed out that in his note, at page 152, he has written:
“I C - any matrimonial lawyer v(ery) top end of bracket”
. He also pointed out that he had recorded at page 160 that counsel thought it a “good order”. He stated he had no instructions to press any other appeal.[40]Cross-examined by Ms Helvadjian, Mr Morgan stated that counsel had made the application with regard to who should do the conveyancing, on instructions. He said that the idea was Ms Helvadjian’s, but the timing was counsel’s idea. This appeared to be contrary to the evidence which he had given in chief, that counsel had advised making the application in respect of the conveyancing. When pressed by Ms Helvadjian, Mr Morgan stated that the application was made “on instructions”.[41]In answer to further questions, he stated that his instructions were that Ambrose Appelbe were not being pressed to lodge the skeleton argument in relation to the appeal against the Compston order, or to proceed with the preparation of any documents. He suggested, relying on the notes of the conference on 19 May, that his firm had been told not to proceed, and not to issue any other appeal. Ms Helvadjian asked him to point out any passage in the note, or in the documents, where she had instructed Ambrose Appelbe not to proceed. Mr Morgan suggested that the words “not appeal” on the last page of his manuscript note (bundle C, page 160) was sufficient to indicate what the instructions were. He suggested that this could be inferred from his notes and counsel’s notes.[42]Mr Morgan went on to say that he would have proceeded with the appeal if he had been specifically instructed to do so by Ms Helvadjian. He pointed out that he had carried out instructions which had been given, contrary to the advice given by Ambrose Appelbe that fresh evidence should be adduced in respect of Amazing Jeans.[43]The note “4 pm Monday” (page 160) was the date and time for lodging the skeleton argument before Mr Justice Mumby. In the note of James Freemantle this is referred to as a position statement.[44]The words “seek uphold” refer to the Green order. The words “not appeal” he believed referred to the Compston order. He accepted that there was no record in writing of any instructions not to proceed with the appeal against the Compston order. Ms Helvadjian took Mr Morgan to the correspondence between Preston & Co and Ambrose Appelbe. On 12 May 2006 (bundle C, page 226) Preston & Co wrote:
“Is your client proceeding with her appeal against the order allowing this firm to continue acting? If so what are her grounds for appeal? … Is your client proceeding with her appeal preventing her from going to Andre Street? If so what are her grounds … Is your client proceeding with her appeal against the division of the sale proceeds of 40 Southway? …”
[45]Mr Morgan said (and Ms Helvadjian subsequently accepted) that the correspondence between Ambrose Appelbe and Preston & Co during May did not refer to, or mention, the appeal against the Compston order.[46]Ms Helvadjian took Mr Morgan to her email of 11 May 2006 to James Freemantle (bundle C, page 229) which states:
“Please can you confirm the skeletal argument was prepared for the appeal of 24/3/06. I am not really sure what is happening regarding appeal and who counsel will be and when I will get to prepare case.”
[47]On the same date Ms Helvadjian had emailed Richard Morgan stating:
“I still want appeal to be served and date sought as originally requested as it can always be withdrawn at the time if necessary ....”
[48]Mr Morgan stated that he did not instruct Mr Cook to prepare a skeleton argument in respect of the appeal against the Compston order, but that all these matters were brought to the attention of Mr Cook and that he advised in conference. He, Mr Morgan, had had a long telephone conversation with Ms Helvadjian on 12 May 2006, and he followed this up with an email on 17 May 2006 (bundle C, page 182/3) in which he advised that the Compston order was “not worthy of appeal”. Mr Morgan stated that he had addressed the merits and considered the transcript and grounds, following which his response was as set out in the email of 17 May.[49]Mr Morgan accepted that at the date of the handover of the papers from BD Laddie the appeal against the Compston order had been issued, and an extension of time obtained.[50]Mr Morgan stated that he recalled that he had advised that the cross-appeal against the Green order had little chance of success, and that the husband’s appeal had no merit. Mr Justice Mumby dismissed the husband’s appeal. Ultimately very little time had been spent on the Compston order appeal. He did not agree that the bundles which had been supplied by Ms Helvadjian related mainly to the Compston order. There were five bundles of trial bundles and transcripts, the essence of the appeal against the Compston order was the objection to Preston & Co doing the conveyancing. The husband had alleged that Ms Helvadjian was “frustrating the marketing” and obstructing the sale. He had therefore applied to alter the order so that Preston & Co could do the conveyancing. Mr Morgan confirmed that by his letter of 22 May to Preston & Co he had informed them that Ms Helvadjian was not pursuing the cross-appeal against the Green order. He stated that he did not need to mention the appeal against the Compston order, since he was not dealing with that appeal.[51]I formed the view that both Ms Helvadjian and Mr Morgan were doing their best to provide the court with accurate information as to what had occurred. It has to be said, however, that Ms Helvadjian was able to back up everything she said with documentary evidence, whereas Mr Morgan found it difficult to recall events which had occurred 2½ years ago, and although he had his files and notes available, was only able to infer from the documents to which he referred that the situation was as he suggested in evidence. I turn now to set out briefly the submissions made by Ms Helvadjian and Mr Morgan.

SUBMISSIONS

[52]Ms Helvadjian has been unwavering throughout these proceedings in stating that her instructions were to pursue the appeal against the Compston order. She submits that her email of 19 May made it clear that, despite the contrary advice which she had received, she still wished to pursue the matter (see paragraph 21 above).[53]Ms Helvadjian further submits that at the conference with counsel there was no mention of withdrawing the appeal against the Compston order. It was all to do with withdrawing her cross-appeal against the Green order, and seeking to uphold the District Judge’s order.[54]Ms Helvadjian submits that her instructions to Mr Morgan were very clear. In addition there is no clear evidence that she ever withdrew her appeal or instructed the firm not to proceed with it.[55]She did not believe she was at the conference with counsel in order to discuss the appeal against the Compston order. Had the topic come up she said she would have discussed it “at length and with emotion”. It was however not discussed on 19 May. She said she would not withdraw it easily, and felt she had had bad advice, and that she had to appeal.[56]Ms Helvadjian argues that although Mr Morgan went through the various clauses of the Compston order, he never commented upon the grounds of appeal which she had drawn up. She pointed out that Ambrose Appelbe never informed Messrs Preston & Co that the Compston order was being withdrawn or not proceeded with. They simply verified that they were withdrawing the appeals relating to the Green order. There was, she said, no documentary evidence that she ever withdrew the appeal or gave instructions that the appeal should not be proceeded with.[57]Mr Morgan accepted that there was no “conveyance of intention to withdraw the HHJ Compston appeal”.[58]Mr Morgan points out that his instructions and brief to counsel (bundle C, page 210 ff) deals both with the appeals against the Green order and with the Compston order as follows:
“The client has also appealed the order of 24 March 2006 [the Compston order] (F29). However, this has not been served to date. Instructing solicitors are of the opinion that the order gave opportunity to the client regarding additional papers and notices. These were not taken advantage in a full fashion. The application was essentially a committal due to the client not giving fair opportunity to the estate agents to market the property. The transcript shows that the client had not been fully co-operative, although the client would argue that the true picture was not as extreme as that portrayed by the other side. The client’s real concern arising from that order is Preston & Co being marked as the conveyancing solicitors and the costs order. Now that the client has instructed solicitors the circumstances have changed and moreover given the inflammatory possibilities of keeping Preston & Co as conveyancer then counsel is instructed to canvass with opposing counsel the option of choosing a more neutral conveyancer, anyone else.”
[59]The instructions conclude:
“Counsel is referred to the papers generally. Counsel is invited to discuss matters with Richard Morgan of instructing solicitors. In addition a conference with the client will assist matters. Counsel is instructed to advise and represent the client upon the appeal listed at the RCJ on Wednesday 24 May 2006 with a time estimate of three days.”
[60]Mr Morgan submits that the email from Ms Helvadjian of 19 May, which had been received at 10.09 am, was followed by a long conference with counsel, which was noted by counsel Mr Morgan himself and James Freemantle. The conclusion of the conference was that the cross-appeal, against the Green order, should be withdrawn, and that counsel should endeavour to uphold what he described as a good order of the District Judge. There was no mention of withdrawing the appeal against the Compston order, nor were there any instructions to press on with that appeal. The focus was on the appeal and cross-appeal against the Green order. Mr Morgan submitted that if he had been instructed to press matters against advice, he would have acted upon those instructions as he had done in relation to the fresh evidence relating to Amazing Jeans. He submitted, however, that he had no clear instructions from the client to proceed with the appeal against the Compston order.

CONCLUSIONS

[61]I cannot accept Mr Morgan’s submissions. It is difficult to see what more Ms Helvadjian could have done to confirm her instructions that she wished the appeal against the Compston order to proceed, albeit after receiving comprehensive advice from Mr Morgan that her appeal had no merit. Ms Helvadjian still maintains that Ambrose Appelbe have misunderstood what she was saying about the Compston order, and that accordingly their advice in respect of it is bad advice. The issue before me is not whether the advice given by Ambrose Appelbe was good or bad. The question which I have to decide is: what instructions did Ms Helvadjian give to her solicitors, and did they carry out those instructions?[62]During the hearing before me I have had the opportunity to go through all the solicitors papers, as well as hearing evidence from Ms Helvadjian and Mr Morgan. It is necessary to set out in some detail the reasons for conclusions which I have reached.[63]Ms Helvadjian lodged a notice of appeal against the Compston order on 13 April 2006. It was this notice which was never served, and which was subsequently struck out in the dismissal list for failure to file skeleton argument in accordance with the Practice Direction.[64]Ms Helvadjian was told that the deadline for her appeal against the Compston order was 8 May. This was later extended to 26 May 2006 (see paragraph 77 below).[65]Having considered the correspondence between Ambrose Appelbe and Preston & Co the picture has become clearer. Not all the correspondence was copied into the bundles for use of the court, and it has been necessary to consider the solicitors’ papers lodged in support of their bills.[66]On 26 April 2006 Ambrose Appelbe wrote to Preston & Co a without prejudice letter in an attempt to reach settlement. There is no need to go into the terms of the offer, since the matter has been resolved by the judgment of Mumby J. The letter does however contain the following paragraph:
“If the matters can be agreed now, then we would also wish to avoid a potential flashpoint raised by Porter & Co being the identified solicitor on the conveyance and the transferor being our client. Given our involvement now we would hope that the conveyance could be transferred to this firm and that your client would find re-assurance in the avoidance of extra tension, possible conflict and our professional obligations.”
[67]On 8 May 2006 Preston & Co wrote to Messrs Ambrose Appelbe informing them that the offer which had been made in correspondence on 26 April was not acceptable. The letter continues:
“Your reference to Porter & Co in your letter is a mystery to us. This firm has been appointed by the High Court to carry out the conveyancing and we see no reason not to undertake this.”
[68]Ambrose Appelbe responded to Preston & Co’s letter dated 8 May 2006 on 12 May 2006:
“We apologise for our reference to Porter & Co, which should have been a reference to Preston & Co. Circumstances have changed since the identification of your firm as the potential conveyancer and we would hope that this particular aspect can be dealt with by agreement.”
[69]Preston & Co replied to that letter on 19 May:
“Circumstances have not changed in relation to the appointment of his firm as conveyancer. As stated by HHJ Compston there is no reason why this firm cannot act.”
[70]On 11 May 2006 Ms Helvadjian emailed James Freemantle, then a trainee, now a partner at Ambrose Appelbe, informing him that she had sent the requisite documents for money laundering purposes (driving licence, passport, etc) by registered post. She also attached her comments on the evidence of Mr Williams, and stated she would send comments on other evidence shortly. She also stated:
“Please can you confirm the skeletal argument was prepared for the appeal of 24.3.06 [ie, the Compston order]. I am not really sure what is happening regarding appeal and who counsel will be and when I will get to prepare case. … Although I have previously acted as a litigant in person due to lack of funds I have instructed yourselves because I found I was unable to represent myself due to situations out of my control, particularly that the hearings between 13.12.05 and 24.3.06, went against me due to a number of admin mistakes and particularly that HHJ Compston did not allow me to make any submissions nor read my affidavit (personally placed on top of file by me), chronology (handed over before hearing) with further evidence including letter from court attached. I have enquired and been informed that if it is found that HHJ Compston did not allow a full and fair hearing for myself at the appeal then a request can be made for costs from Central Funds.”
[71]I interpose here to state that any advice which may have been given to Ms Helvadjian to the effect that she might be entitled to her costs out of Central Funds was incorrect, see Steele Ford & Newton (A Firm) v CPS [1993] 2 All ER 769 HL. The email continues in terms which clearly relate to the order made by HHJ Compston.[72]On the following day, the 12th May, Ms Helvadjian sent an email to Richard Morgan headed “Appeal of HHJ Compston’s order”. The message reads:
“Further to our discussion today, I am extremely anxious about the appeal of HHJ Compston’s order. I have been told I am entitled to a full and fair hearing. I did not get one. I have been told the only way to deal with this is by way of appeal. Hence I put my appeal in and handed papers to be firstly served by Neil Russell and then he handed over to yourselves. I thought they had been served. I still want appeal to be served and date sought as originally requested, as it can always be withdrawn at the time, if necessary. I do not want it left that I in some way have deserved to be awarded costs, or that I hindered sale of house which will allow them to get further costs awarded against me. My affidavit addressed issues to do with points 1, 2, 3, 9, 10, 11 of HHJ Compston’s order. If they didn’t apply for committal to prison, why was I being awarded costs of the committal? On top of that they will ask for costs in relation to hearings between 13.12.05 – 30.1.06. I do not understand how this matter will be corrected without the appeal. HHJ Compston did not read my chronology handed to him on the day of hearing which also related to point 9 of his order, but he read the other side’s note. Point 4, point 7, point 10 is strongly appealed of his order. I thought appeal of 24.3.06 would be dealt with at same time as main appeal, and I was told that if I did not get a full and fair hearing, I could ask for compensation and this would come from Central Funds. If the Judge dismisses both appeals, what about HHJ Compston’s order then? I must stress that it is extremely important that I do not risk in any way Mr Preston being the conveyancer for my property, if I have to sell, or appeals thrown out. If appeals thrown out and costs awarded to Mr Williams, can I still pay him off? Instead of selling at least in the short term, as I don’t want to be tied into Mr Williams anymore after hearing.”
[73]On 12 May 2006 Messrs Preston & Co wrote to Ambrose Appelbe: “Is your client proceeding with her appeal against the order allowing this firm to continue acting? If so what are her grounds of appeal? …” (bundle C, page 226)[74]On 16 May 2006 Mr Morgan and/or Mr Freemantle drafted a letter to Ms Helvadjian pointing out the perceived problems with her intended appeal against the Compston order. The letter concludes:
“With reference to the above I must say that to make such an appeal would be fruitless and may not even be possible. I understand from our conversations that you believe that you should appeal an order on the basis that the outcome was not to your liking. I must point out that this is not in law the basis upon which to make an appeal. An appeal must be made on the grounds that an order given was unjust and unfair and after reasoned analysis would result in such an unfair outcome that not to appeal it would be as heinous as to appeal wrongly. The order made on 24 March may not be to your liking, but such an appeal in the eyes of the court would be without foundation and a waste of the court’s time.”
[75]That letter was never sent to Ms Helvadjian. Mr Morgan did however email her on 17 May, among other things this states:
“When we spoke on Friday last [ie, 12 May 2006] for 90 minutes, largely but not exclusively upon the HHJ Compston order, I understood that we were not pursuing the appeal issued by you on 7 April regarding that order. I note your points in the subsequent email. I have reviewed the issues and the order in the light of the appeal as drafted. I have also discussed it briefly with Mr Cook, on a preliminary basis. Consequently my advice has not changed. Our instructions and focus are and should be upon the cross-appeals of DJ Green’s order. The applications and orders since then have basically gone towards issues of implementation. This is not to dismiss their importance and the impact upon you, however, you have instructed us to concentrate upon the vital order and the cross-appeals. … Turning briefly to deal with the HHJ Compston order I would comment upon the following numbered flaws within that order which you raised specifically …”
[76]Mr Morgan then goes through the numbered clauses in the Judge’s order, pointing out why, in his view, the appeal would fail. The email continues:
“I know that you have been informed that should you not like an order then the only way to address the situation is to appeal it. There is nevertheless a process that needs to be applied. The point disagreed with cannot be argued against merely because of subjective dislike. Rather, it must be wrong in a legal context. Then a practical test must be applied – is the appeal of value or will it advance my position. Considering the HHJ Compston order overall I advised it is not worthy of appeal …”
The message then turns to deal with other matters relating to the cross-appeals.[77]On 17 May 2006 the Civil Appeals Office wrote to Ms Helvadjian pointing out that she had not yet lodged the necessary bundle of documents for use of the Court of Appeal in relation to her appeal against the order of HHJ Compston. The letter continues:
“This matter will therefore be dismissed with costs for failure to comply with the court’s directions unless a bundle complying in every respect with the Practice Direction and the bundle leaflet which you have been sent has been lodged with the Civil Appeals Office … to arrive no later than 4 pm on 26 May 2006, or sufficient reasons provided in writing why that cannot be done. The order for dismissal will be made without a hearing and only in exceptional circumstances might further time be granted for compliance.”
The letter is signed by Mr A Caton, Dismissal List Manager.[78]On 19 May, before the conference took place, Ms Helvadjian emailed Mr Morgan:
“Dear Richard, Thank you for your email. I will meet you today as arranged. When you rang last Friday, I understood it was to inform me that my appellant’s notice had not been served, which worried me. You advised not to follow that appeal, but I discussed with you why I wanted the appeal served. At no point have I not wanted the appeal served. I still want the appeal served unless there is another way to deal with the history of hearings between 13.12.05 and 24.3.06 and how Mr Preston has misled the court over and over again. It is because of this appeal that I have instructed solicitors. It was my intention to serve myself, but thought it better that my solicitor prepare skeletal argument. I have just received a note from the court regarding this giving until 26.5.06 to do so. I have faxed to you, otherwise there is costs implication to me. It is paramount as discussed in our meeting with Lisa Bolgar Smith that Mr Preston does not act as the conveyancer in this case. He has requested the deeds off Halifax and I do not know whether this has affected my mortgage offer from them and thus my appeal …”
[79]The remainder of the email goes into detail as to why Ms Helvadjian does not want Mr Preston to act as the conveyancer in the case. Mr Preston acted for Mr Williams. It is quite clear from the contents of this email that in spite of the advice which she had been given by Mr Morgan, Ms Helvadjian was intent on proceeding with her appeal against the order of HHJ Compston.[80]Ambrose Appelbe responded to Messrs Preston & Co on 19 May:
“We confirm that our client is withdrawing her appeal of the order of 30 September 2007. Our counsel, Ian Cook of 1 Kings Bench Walk shall be lodging a position statement with the court by 4 pm on Monday stating that our client is withdrawing her appeal and that we shall seek to uphold the order of 30 September for the reasons DJ Green gave in her judgment.”
[81]There is no mention in that letter of the appeal against the Compston order.[82]In response to that letter Preston & Co wrote, on 22 May: “We note your client is withdrawing her appeal against the order of 30 September 2005. We expect all of our costs to be met as a result of you’re (sic) withdrawal. We presume your client is withdrawing her appeals against the other two orders as identified in our letter of 12 May but please confirm.” [bundle C, page 226][83]On the same day Ambrose Appelbe responded:
“Further to your letter of even date we do not accept your position on costs and in any event this is not the appropriate time to discuss the same. For clarification our client is not seeking to pursue her appeal or DJ Green’s order of 30 September 2005 as set out in her notices of appeal and grounds. There were no separate appeals upon the legal representation and Andre Street issues to which you refer in your letter of 12 May 2006.”
[84]The letter makes no reference to any appeal against the Compston order, or, given that this letter was written after the conference with counsel, that the appeal against the Compston order was being withdrawn or not proceeded with.[85]Preston & Co responded on the same day:
“When any party discontinues litigation they pay the costs of the other side that have been wasted. This a fundamental principle of our legal system. As to the appeals lodged by your client she makes it very clear in the 21st April version that she is also appealing the two interlocutory orders that were reserved to the trial Judge. See page 72 of the appeal bundle. For the avoidance of doubt we ask once again for the confirmation sought.”
[86]There is further correspondence on that day, but none relevant to the issue which I have to decide. I have also seen among the solicitor’s papers emails to and from counsel Mr Cook. There is no mention anywhere of an appeal against the Compston order.[87]The conference with Counsel Mr Cook took place on 19 May 2006, both Mr Morgan and Mr Freemantle were in attendance with the client.[88]The note taken by James Freemantle on 19 May is both full and legible, quoting selectively from it, the note states:
“[counsel] Decision urgently needed re our appeal. Sketch of ct approach to appeal (both his and ours). a) re for appeal: – appeal – High Court Judge has to be satisfied that DJ decision was plainly wrong. Formulation – outside the reasonable bracket of possible outcomes. No right answer in ancillary relief matters. Was DJ plainly wrong or outside band of reasonable decisions. Appeal Judge cannot say, if it were me I would do this and will do so. New evidence is approached by test from case law. Fresh evidence hard to adduce. Parameters within which we work. My clear view is your appeal has no prospect of success. … Should withdraw our appeal and spend time meeting his. (page 161/162) (page 169) Courts do not have jurisdiction over CSA. I will raise issue over conveyancer for £3,000! … Decision? Withdraw cross-appeals. Reduce time estimate. Maintain order. Costs. You will damage your appeal by arguing appeal. Agreed to withdraw.”
Should withdraw our appeal and spend time meeting his. (page 161/162) I will raise issue over conveyancer for £3,000! Agreed to withdraw.”

I will raise issue over conveyancer for £3,000!

[89]It is clear from this note that apart from counsel’s indication that he would raise the point about the conveyancer, there is quite simply no discussion whatsoever of the appeal against the Compston order.[90]In the light of the evidence both oral and documentary I find that what Ms Helvadjian agreed to do was to accept Counsel’s advice in relation to the cross-appeal. There is no indication that any conclusion was reached relating to the appeal against the Compston order.[91]I further find that Ms Helvadjian gave Ambrose Appelbe clear and distinct instructions from which she never wavered, in spite of the contrary advice which she received, that she wished them to proceed with the preparation of her skeleton argument in respect of the appeal against the Compston order, so that her appeal would not be struck out. I am forced to the conclusion that, having advised Ms Helvadjian in strong terms that her appeal was bound to fail, Ambrose Appelbe quite simply ignored her instructions.

EFFECT OF FAILURE TO CARRY OUT THE CLIENT’S INSTRUCTIONS

[92]The retainer between the solicitors and client in this case is both written and oral. The written part is the client care letter, dated 24 April 2006 (bundle C, page 9 ff), which effectively sets out the solicitors’ terms of business. The oral part of the retainer came into being at the meeting on 24 April 2006 (see paragraph 11ff above). It follows from my finding at paragraph 18 above that the oral retainer covered all the work which B D Laddie had been doing, ie, the husband’s appeal against the Green order; the cross-appeal and the appeal against the Compston order.[93]As a general rule, when a client retains a solicitor for a particular purpose there is an entire contract, ie the solicitor contracts to finish the business for which he has been retained: see Romer v Haslam [1893] 2 QB 286 at 301 where Kay LJ said:
“If a solicitor is retained in a civil action (it is immaterial whether it be an action at law or in equity), prima facie his contract is entire; it is a contract to carry the matter through to a conclusion. The result of this is that he has no right under the statute to send in his bill and insist upon payment until the conclusion of the business to conduct which he was retained.”
[94]The matter was further considered in Underwood Son & Piper v Lewis [1894] 2 QB 306 CA, where Lord Esher MR stated:
“When a man goes to a solicitor and instructs him for the purpose of bringing or defending such an action, he does not mean to employ the solicitor to take one step and then give him fresh instructions to take another step and so on; he instructs the solicitor as a skilled person to act for him in the action, to take all the necessary steps into and to carry it on until the end. If the meaning of the retainer is that the solicitor is to carry on the action till the end, it necessarily follows that the action of a solicitor is an entire contract – that is a contract to take all the steps which are necessary to bring the action to a conclusion. … I do not propose to go through all the cases cited but it seems to me that from time downwards it has been held that a solicitor cannot sue for his costs until his contract has been entirely fulfilled, unless the case is brought within some recognised exception to the general rule.”
[95]In the more recent case of Richard Buxton (Solicitors) v Mills-Owens [2008] EWHC 1831 (QB) MacKay J, the Judge explained: “26. … [Lord Esher] listed as an exception where the client was not prepared to finance disbursements but expected the solicitor to do so out of his own pocket. He also appeared to contemplate that a lengthy and complicated Chancery action which might be divisible into stages could be the subject of successive or serial retainers.[96]MacKay J continued:
“31. Mr Buxton acknowledges that I am bound by the general principle stated in Underwood. … He argues that the Court of Appeal’s authority is elderly and should be applied more flexibly to modern conditions. He says that there should be implied into the contractual relationship between solicitor and client such terms as “if there is a case we will take it to its conclusion” and “you as a client must act reasonably”
. While I can see that such terms may be desirable in the interests of solicitors to avoid just the sort of problem that these solicitors found themselves in, their implication is not necessary for the performance of the contract and I would not for my part be prepared to consider their incorporation by implication into a contract of retainer absent any express term to that effect. 32. There may come a case when the “entire contract” principle falls to be reviewed in the way Mr Buxton suggests, but I am of the clear view that this is not it. Until that case emerges it is dangerous, and for these purposes unnecessary, to attempt to depart from the principle, or to identify other examples of “just cause” for termination.”[97]Given my finding that this retainer was an entire contract to deal with Ms Helvadjian’s appeals, including the appeal against the Compston order, it follows that Ambrose Appelbe, having failed to carry out her instructions, are not in a position to require her to pay their costs. I find, therefore, that nothing is payable in respect of Ambrose Appelbe’s profit costs.[98]For completeness I should deal with the fact that this detailed assessment is being carried out at the client’s request. The application by a client for an order for detailed assessment of a solicitor’s bill may act as an estoppel preventing the client from denying the existence of the retainer: see Re: Jones [1887] 36 ChD 105. In this case, however, Ms Helvadjian does not seek to deny the existence of the retainer, but to uphold it. Her complaint is that the solicitors have quite simply failed to carry out her instructions. A submission which she has argued successfully.[99]The detailed assessment proceedings had reached bill No.14298, dated 31 May 2006, which covered the period of the hearing before Mumby J and the point at which the appeal against the Compston order was struck out. Further bills have been delivered by Ambrose Appelbe, but unless it can be shown that an entirely separate retainer has been entered into, no profit costs will be payable in respect of those bills, for the reasons which I have already given.[100]Bill No.14332 is dated 7 June 2006, it amounts to £2,704.37, and stems directly from the involvement of Preston & Co as conveyancing solicitors, ie, the subject of the appeal against the Compston order. An attendance note (bundle C, page 391) records a telephone conversation with Ms Helvadjian. James Freemantle has noted:
“She said she was too distraught to deal with it. Refused to give me instructions. Will call and talk to me about it tomorrow.”
Will call and talk to me about it tomorrow.”[101]On the same day James Freemantle telephoned Mr Preston and informed him he could do nothing without instructions from the client. It transpired that Preston & Co had made an application to the court on 31 May 2006, which was listed for hearing before the District Judge at 3.15 pm on 5 June when the matter was adjourned generally with costs reserved. Ms Helvadjian explained the situation in her skeleton argument, put before Mr Justice Evans-Lombe:
“14. Ambrose Appelbe have helped themselves to over £40k of my money from the sale of my house despite the fact that I disputed the amount they were claiming. Around £7k was added to my bill after they stopped acting for me. I was put in a very compromising situation when I was called to attend an unexpected hearing on 5/6/06 [the application made by Preston & Co] and told I had to sign a Sears Tooth agreement, in order for them to represent me that day within the hour. An agreement I knew nothing about before arriving in their office at short notice. I disagreed with the large interest rate of 15% and was told to seek advise (sic) from a solicitor next door to them, who understood the predicament I was in, and suggested I sign it but hang on to it and renegotiate. However James Freemantle after telling him this offered to carry my papers and would not give me back the Sears Tooth agreement, but told me instead he would not hand over to Ms Bolgar Smith before I had negotiated. However, he did hand the document over and Ms Bolgar Smith would not negotiate. James Freemantle also told me, as the other side’s application was adjourned generally, and the court was not happy about the court application, I would get my costs back. However, that never happened and they did not even apply for them. 2 days later I became a litigant in person.”
[102]A copy of the draft of Sears Tooth agreement is in bundle C at page 421.[103]Bill No. 14379 is dated 14 June 2006 and amounts to £518.18. On 7 June 2006 Ambrose Appelbe wrote to Preston & Co:
“Further to your fax of even date with regard to the application listed for tomorrow [8 June 2006] at 11.30 am, we hereby notify you that we are not instructed to attend on behalf of our client. Our client shall therefore be attending as a litigant in person.”
[104]Such work as is covered by that bill relates to the difficulties over conveyancing and the application to the court by Preston & Co.[105]Bill No.14408 is dated 21 June 2006 and amounts to £717.93. This covers the work done in connection with the judgment of Mr Justice Mumby, which was delivered on 15 June 2006.[106]Ms Helvadjian had already emailed James Freemantle on 27 June 2006 in relation to the judgment of Mumby J. Among other things she says:
“… I am also distressed at having to pay the additional £5,000 ordered by HHJ Compston, again cutting into my maintenance. With regard the fees for the hearing of 5/6/06, I understand that you will be obtaining an order for Mr Preston to pay my costs and therefore there is still a costs hearing? However there is still the issue of the costs for the hearings leading up to the 24/3/06 that Mr Preston said in the last hearing that he was instructed by his client to give costs off me. One of my main concerns when I came to yourselves. This issue/appeal of HHJ Compston’s order and the appeal was what I requested your assistance for at the outset and was quoted £25,000. As the fees by your firm have risen well above the £25,000, please could you let me have a breakdown of the bills. In regard to the Sears Tooth agreement, you said you would hold the papers until I have discussed the interest as I was advised not to hand them over until I had discussed a better interest rate and had also strongly felt myself that 15% was too high. (I had secured the borrowings as a way of mortgage to facilitate my legal fees, but it is Mr Preston who prevents me from drawing down). A differential over base would be more normal …”
[107]Lisa Bolgar Smith relied to this letter on 28 June 2006 (bundle D, page 82/3):
“Regarding the £24,000 placed on account with us, it was stated to you at the start that we required £25,000 to be put on account. Due to your financial situation you were only able to provide £24,000. At no time was the figure of £25,000 a quote for the work to be done on your behalf, but merely the sum we asked for to be placed on account. As discussed we estimated that the appeal would cost at least this and maybe more. This can be seen from our client care letter of 24 April 2006. In the event the work involved was considerably more than anticipated and we also had to deal with the subsequent costs issues and applications for sale of the property. As we had utilised all the funds on account and you are not in a position to provide further funds, as an exceptional case we agreed to continue to act under a Sears Tooth agreement. We discussed costs again in detail at the meeting prior to you signing the Sears Tooth agreement and advised you at that meeting of the costs outstanding plus an estimate of the ongoing cost. In respect of the Sears Tooth agreement, I would reiterate that the 15% interest is not negotiable. The Sears Tooth agreement was a necessity in order to ensure you were able to cover the costs of the work done on the appeal and subsequent to the same. You were advised independently by Simon Beccle before you signed the agreement. Regarding your request for a breakdown of your bills I would be happy to arrange for this to be done, but I would have you note that this will take some time to prepare and I would have to charge you for this work, as is stated in our terms and conditions …”
[108]Bill No.14444, dated 28 June 2006 and amounts to £493.27, all of which relates to the conveyancing being undertaken by Preston & Co.[109]Bill No.14526, dated 12 July 2006 and amounts to £338.40. This bill covers further correspondence in relation to the conveyancing.[110]On 11 July 2006 Ms Lisa Bolgar Smith wrote to Ms Helvadjian:
“I have received correspondence from Preston & Co stating they will be transferring the proceeds of sale of 40 Southway to another firm of solicitors. As you are aware the Sears Tooth agreement entered into with you was for your benefit so that your legal costs could only be claimed once 40 Southway was sold. In order for that to occur, I require your irrevocable authority that the monies required to settle your account with us, being £14,060.71 with monies on account of £350, may be settled in the manner dictated in the Sears Tooth. Please therefore confirm your acceptance of the above by signing the enclosed authority.”
Please therefore confirm your acceptance of the above by signing the enclosed authority.”[111]Bill No.14744 is dated 30 August 2006, and amounts to £612.14, this work is again dealing with the conveyancing transaction.[112]The final bill is No.15113, dated 15 November 2006, which amounts to £1,361.88. This account covers the finalisation of the conveyancing, and contains a pre-action letter of claim from Ambrose Appelbe to Ms Helvadjian and claims outstanding costs totalling £15,399.96, including interest.[113]The total of the invoices delivered on and after 7 June 2006 is £6,746.17. I will hear further submissions as to whether there is any separate retainer in respect of the work done under those bills. If it is shown to my satisfaction that there is such a retainer, those bills will still be the subject of detailed assessment.[114]I have to say, however, that my preliminary view is that all these bills are covered by the initial retainer, and therefore no profit costs will be payable in respect of them.[115]Turning to the question of disbursements: to the extent that they have been paid it is appropriate that Ms Helvadjian should be charged for them, see Tandara v Weightmans [2008] EWHC 90101 (Costs) and the cases referred to therein.[116]The relevant disbursements appear to be: 3 May 2006 (photocopying £49.03), 3 May 2006 (photocopying £10.20), 23 May 2006 (photocopying £286), 1 June 2006 (counsel’s fee, Mr Ian Cook, £10,575), 2 June 2006 (photocopying £90.43), 2 June 2006 (photocopying £42.23), 2 June 2006 (photocopying £104.93), 7 June 2006 (photocopying £74), 27 June (photocopying £4.80), 4 August 2006 (HM Land Registry fee £40), 7 August 2006 (swearing fee £5), 4 September 2006 (Land Registry fee £40), 29 September 2006 (photocopying £63.92), 3 October 2006 (photocopying £47.71). I calculate the total disbursements at £11,430.25.[117]Accordingly, subject to the outcome of any submissions which may be made as to the existence of a separate retainer in respect of the bills from 7 June 2006 onwards, the amount payable by Ms Helvadjian is £11,430.25.