Paul Singh v EUI Ltd [2023] EWHC 2134 (SCCO)

[2023] EWHC 2134 (SCCO)Case No SC-2021-BTP-000433
IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE
Thomas More Building
Venue Royal Courts of Justice, Strand, London WC2A 2LLDate 03/08/2023
Before
COSTS JUDGE LEONARD
Between
PAUL SINGHClaimantEUI LTDThird Defendant
Paul Singh In Person for in personVrahimis Orphanou In Person for in personKevin Latham (instructed by Horwich Farrelly) for Third DefendantHenry Mainwaring (instructed by Lords Solicitors LLP) for Lords Solicitors LLPMartin Forde KC (instructed by Clyde & Co LLP) for Alexandra WillsHearing Hearing dates: 18 January 2023 and 5 May 2023
Approved JudgmentI direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic..............................COSTS JUDGE LEONARD

Costs Judge Leonard:

[1]I have been assessing the costs payable to the Claimant by the third Defendant under an order of Mr Justice Kerr dated 22 November 2017. In the course of the assessment, the third Defendant made an application under Civil Procedure Rules (“CPR”) 44.11 and 46.8 for the Claimant's assessed costs to be reduced by 50% and for the Claimant and/or his legal representatives to pay the third Defendant's costs of assessment on the indemnity basis. That application was heard on the conclusion of the assessment, and it is the subject of this judgment.[2]Before briefly summarising the stated grounds for the application, I should emphasise that (notwithstanding a lack of transparency as to who has been responsible for advising and representing the Claimant from time to time) not all of the allegations to which I shall refer are, or can be, levelled at all of the Claimant’s advisers. In my conclusions I have tried as far as possible to achieve an appropriate allocation of responsibility for such actions as might be open to criticism.[3]The stated grounds for the application are these.[4]The Claimant and his various advisers have, between them (and apart from the matters to which I refer below) been responsible for multiple breaches of the CPR and Practice directions as to the conduct of Detailed Assessment proceedings.[5]The Claimant has produced two bills, in wildly varying amounts, purporting to represent the same set of costs. Both those bills of costs have been certified as accurate when they were not accurate. The information offered in support of their accuracy was largely incomprehensible and manifestly incomplete.[6]Both bills have been certified to the effect that the costs claimed do not breach the indemnity principle, when in fact they do. The Claimant’s solicitors have, in support of the proposition that it has not been breached, relied upon evidence which is not genuine.

The Rules

[7]The Court’s “Wasted Costs” Jurisdiction under CPR 46.8 derives from section 51(6) of the Senior Courts Act 1981:
“… the court may disallow, or (as the case may be) order the legal or other representative concerned to meet, the whole of any wasted costs or such part of them as may be determined in accordance with rules of court.”
[8]CPR 46.8 reads, as far as pertinent:
“(1) This rule applies where the court is considering whether to make an order under section 51(6) of the Senior Courts Act 1981 (court’s power to disallow or (as the case may be) order a legal representative to meet, ‘wasted costs’). (2) The court will give the legal representative a reasonable opportunity to make written submissions or, if the legal representative prefers, to attend a hearing before it makes such an order. (3) When the court makes a wasted costs order, it will – (a) specify the amount to be disallowed or paid; or (b) direct a costs judge or a district judge to decide the amount of costs to be disallowed or paid.” (a) specify the amount to be disallowed or paid; or (b) direct a costs judge or a district judge to decide the amount of costs to be disallowed or paid.”
[9]Practice Direction 46, at paragraph 5, provides:
“…A wasted costs order is an order – (a) that the legal representative pay a sum (either specified or to be assessed) in respect of costs to a party; or (b) for costs relating to a specified sum or items of work to be disallowed…. Such orders can be made at any stage in the proceedings up to and including the detailed assessment proceedings. In general, applications for wasted costs are best left until after the end of the trial… The court may make a wasted costs order against a legal representative on its own initiative… A party may apply for a wasted costs order – (a) by filing an application notice in accordance with Part 23; or (b) by making an application orally in the course of any hearing… It is appropriate for the court to make a wasted costs order against a legal representative, only if – (a) the legal representative has acted improperly, unreasonably or negligently; (b) the legal representative's conduct has caused a party to incur unnecessary costs, or has meant that costs incurred by a party prior to the improper, unreasonable or negligent act or omission have been wasted; (c) it is just in all the circumstances to order the legal representative to compensate that party for the whole or part of those costs… The court will give directions about the procedure to be followed in each case in order to ensure that the issues are dealt with in a way which is fair and as simple and summary as the circumstances permit… As a general rule the court will consider whether to make a wasted costs order in two stages – (a) at the first stage the court must be satisfied – (i) that it has before it evidence or other material which, if unanswered, would be likely to lead to a wasted costs order being made; and (ii) the wasted costs proceedings are justified notwithstanding the likely costs involved… (b) at the second stage, the court will consider, after giving the legal representative an opportunity to make representations in writing or at a hearing, whether it is appropriate to make a wasted costs order in accordance with paragraph 5.5 above… The court may proceed to the second stage described in paragraph 5.7 without first adjourning the hearing if it is satisfied that the legal representative has already had a reasonable opportunity to make representations… On an application for a wasted costs order under Part 23 the application notice and any evidence in support must identify – (a) what the legal representative is alleged to have done or failed to do; and (b) the costs that the legal representative may be ordered to pay or which are sought against the legal representative.” (a) that the legal representative pay a sum (either specified or to be assessed) in respect of costs to a party; or (b) for costs relating to a specified sum or items of work to be disallowed…. (a) by filing an application notice in accordance with Part 23; or (b) by making an application orally in the course of any hearing… (a) the legal representative has acted improperly, unreasonably or negligently; (b) the legal representative's conduct has caused a party to incur unnecessary costs, or has meant that costs incurred by a party prior to the improper, unreasonable or negligent act or omission have been wasted; (c) it is just in all the circumstances to order the legal representative to compensate that party for the whole or part of those costs… (a) at the first stage the court must be satisfied – (i) that it has before it evidence or other material which, if unanswered, would be likely to lead to a wasted costs order being made; and (ii) the wasted costs proceedings are justified notwithstanding the likely costs involved… (b) at the second stage, the court will consider, after giving the legal representative an opportunity to make representations in writing or at a hearing, whether it is appropriate to make a wasted costs order in accordance with paragraph 5.5 above… (a) what the legal representative is alleged to have done or failed to do; and (b) the costs that the legal representative may be ordered to pay or which are sought against the legal representative.”
[10]CPR 44.11 reads:
“(1) The court may make an order under this rule where – (a) a party or that party’s legal representative, in connection with a summary or detailed assessment, fails to comply with a rule, practice direction or court order; or (b) it appears to the court that the conduct of a party or that party’s legal representative, before or during the proceedings or in the assessment proceedings, was unreasonable or improper.” (2) Where paragraph (1) applies, the court may – (a) disallow all or part of the costs which are being assessed; or (b) order the party at fault or that party’s legal representative to pay costs which that party or legal representative has caused any other party to incur… ” (a) a party or that party’s legal representative, in connection with a summary or detailed assessment, fails to comply with a rule, practice direction or court order; or (b) it appears to the court that the conduct of a party or that party’s legal representative, before or during the proceedings or in the assessment proceedings, was unreasonable or improper.” (a) disallow all or part of the costs which are being assessed; or (b) order the party at fault or that party’s legal representative to pay costs which that party or legal representative has caused any other party to incur… ”
[11]Practice Direction 44, at paragraph 11.1, reads:
“Before making an order under rule 44.11, the court must give the party or legal representative in question a reasonable opportunity to make written submissions or, if the legal representative so desires, to attend a hearing.”
[12]For the purposes of this judgment it is also necessary to refer to some of the provisions of the CPR dealing with commencing and pursuing detailed assessment proceedings, following the conclusion of the substantive action.[13]Detailed assessment proceedings are commenced (CPR 47.6) by the receiving party serving upon the paying party a Notice of Commencement in form N252. The Notice of Commencement (Practice Direction 47, paragraph 5.2) must be accompanied by a copy of the bill of costs, copies of the fee notes of counsel and any experts whose fees are claimed, and written evidence of any other claimed disbursements which exceed £500.[14]CPR 47.7 requires that (following the conclusion of the substantive action) detailed assessment proceedings be commenced within three months of the relevant costs order. If a hearing is needed, CPR 47.14 requires that it be requested by the receiving party within 3 months of the time allowed for commencing the detailed assessment proceedings.[15]CPR 47.8 and CPR 47.14 deal with delays in commencing detailed assessment proceedings or requesting a detailed assessment hearing. Both provide for the paying party to apply for an order that detailed assessment proceedings be commenced (or, as the case may be, a detailed assessment hearing be requested) within a given period, failing which all or part of the receiving party’s costs may be disallowed. Absent such an application, the court may disallow statutory interest on the recoverable costs, but will not impose any other sanction except under CPR 44.11.[16]I should also mention the indemnity principle, a fundamental principle of assessment to the effect that a party may not, under an order for costs, recover costs or disbursements which that party has not paid and is not liable to pay.

The Authorities

[17]The court’s jurisdiction under CPR 44.11 is, as the above extracts from the rules demonstrate, distinct and separate from the wasted costs jurisdiction exercised under CPR 46.8, but the two jurisdictions have key principles in common.[18]In Ridehalgh v Horsefield [1994] Ch 205, CA the Court of Appeal considered the court’s wasted costs jurisdiction. Sir Thomas Bingham MR, handing down the judgment of the court, emphasised (at pages 227D and 232H-233A) that the court’s jurisdiction to make a wasted costs order against a solicitor is founded on a breach of the duty owed by the solicitor to the court as an officer of the court, so that within the scope of “improper, unreasonable or negligent” for the purposes of wasted costs, the conduct of a solicitor must amount to a breach of that duty.[19]At 232 D-233E of the court offered this guidance: ‘"Improper" … covers, but is not confined to, conduct which would ordinarily be held to justify disbarment, striking off, suspension from practice or other serious professional penalty. It covers any significant breach of a substantial duty imposed by a relevant code of professional conduct. But it is not in our judgment limited to that. Conduct which would be regarded as improper according to the consensus of professional (including judicial) opinion can be fairly stigmatised as such, whether or not it violates the letter of a professional code. "Unreasonable" … describes conduct which is vexatious, designed to harass the other side rather than advance the resolution of the case, and it makes no difference that the conduct is the product of excessive zeal and not improper motive…The acid test is whether the conduct permits of a reasonable explanation… … "negligent" should be understood in an untechnical way to denote failure to act with the competence reasonably to be expected of ordinary members of the profession… advice, acts or omissions in the course of their professional work which no member of the profession who was reasonably well-informed and competent would have given or done or omitted to do … an error such as no reasonably well-informed and competent member of that profession could have made... … Conduct which is unreasonable may also be improper, and conduct which is negligent will very frequently be … unreasonable. We do not think any sharp differentiation between these expressions is useful or necessary or intended…”[20]At page 238 F-H the court expressed the view that wasted costs applications are generally best left until the end of a trial, and, as to procedure said:
“The procedure to be followed in determining applications for wasted costs must be laid down by courts so as to meet the requirements of the individual case before them. The overriding requirements are that any procedure must be fair and that it must be as simple and summary as fairness permits. Fairness requires that any respondent lawyer should be very clearly told what he is said to have done wrong and what is claimed. But the requirement of simplicity and summariness means that elaborate pleadings should in general be avoided. No formal process of discovery will be appropriate. We cannot imagine circumstances in which the applicant should be permitted to interrogate the respondent lawyer, or vice versa. Hearings should be measured in hours, and not in days or weeks. Judges must not reject a weapon which Parliament has intended to be used for the protection of those injured by the unjustifiable conduct of the other side's lawyers, but they must be astute to control what threatens to become a new and costly form of satellite litigation.”
[21]In Lahey v Pirelli Tyres Ltd [2007] EWCA Civ 91 Dyson LJ, again giving the judgment of the court, considered the application of CPR 44.14 (the predecessor of CPR 44.11) to penalise unreasonable or improper conduct: ‘"The word “unreasonable” in section 51(7) of the 1981 Act has been construed quite narrowly. In our view, it should be given a similarly narrow meaning in rule 44.14... Its meaning cannot vary according to whether the conduct in question is that of the party or his legal representative.… “[22]In Haji-Ioannou v Frangos [2006] EWCA Civ 1663 the Court of Appeal, again considering the appropriate application of what was then CPR 44.14, declined to disallow costs, notwithstanding a 5-year delay in commencing detailed assessment proceedings.[23]The court’s reasoning was based upon the fact that the CPR, at 47.8 already makes express provision for the imposition of penalties for such a delay, the court should be hesitant in imposing further penalties. To do otherwise might encourage satellite litigation.[24]At paragraph 10 of his judgment in Haji-Ioannou v Frangos, Longmore LJ observed:
“The important point is that, while a non-compliance with a rule, practice direction or court order is the only jurisdictional requirement for the exercise of the power contained in…” (CPR 44.14, now CPR 44.11) “…it will usually be appropriate as a matter of discretion to consider the extent of any misconduct which has occurred in the course of such non-compliance.”
[25]Mr Latham has drawn my attention to Re CH (A Child) [2000] 2 F.C.R. 193, in which Wall J found that a complete and unexplained failure to comply with a practice direction for the preparation of court bundles in family proceedings, which had the consequence of extending the time for hearing an application to approximately four times as long as it should have done, was capable of amounting to unreasonable conduct by reference to what was then CPR 44.14. He disallowed one half of the fees for the hearing to which the solicitors and counsel responsible would otherwise have been entitled an assessment.[26]Although the word “negligent” does not appear in CPR 44.11, it was accepted in Gempride Ltd v Bamrah [2018] EWCA Civ 1367 that the Ridehalgh v Horsefield guidance upon the meaning of that word sheds light upon the meaning of the (more serious) terms “unreasonable or improper”.[27]At paragraphs 10-20 of his judgment in Gempride Ltd v Bamrah, Hickinbottom LJ observed: “In the conduct of litigation, the court is entitled to assume that an authorised person such as a solicitor will comply with his duty to the court. As Judge LJ put it in Bailey v IBC Vehicles Limited [1998] 3 All ER 570 (“Bailey”) at page 574j: ‘As officers of the court, solicitors are trusted not to mislead or to allow the court to be misled. This elementary principle applies to the submission of a bill of costs’. That theme was taken up by Henry LJ in a concurring judgment (at pages 575g-576c), with which Butler-Sloss LJ expressly agreed. ‘RSC Order 62 rule 29(7)(c)(iii) [now CPR PD 47 paragraph 5.21] requires the solicitor who brings proceedings for taxation to sign the bill of costs. In so signing he certifies that the contents of the bill are correct. That signature is no empty formality. The bill specifies the hourly rates applied, and the care and attention uplift claimed. If an agreement between the receiving solicitor and his client… restricted (say) the hourly rate payable by the client, that hourly rate is the most that can be claimed or recovered on taxation…. The signature on the bill of costs under the rules is effectively the certificate by an officer of the court that the receiving party’s solicitors are not seeking to recover in relation to any item more than they have agreed to charge their client ... The court can (and should unless there is evidence to the contrary) assume that his signature to the bill of costs shows that the indemnity principle has not been offended…. … [T]he other side of a presumption of trust afforded to the signature or an officer of the court must be that breach of that trust should be treated as a most serious disciplinary offence.’ The rule number and terminology have of course subsequently changed; but the principles set out in that passage remain good… There are a number of provisions which reflect the court’s supervisory function over authorised persons conducting litigation… First, section 51(6) of the Senior Courts Act 1981, CPR rule 46.8 and CPR PD 46 paragraph 5 give the court the power, amongst other things, to order a legal representative to meet, or to disallow, “wasted costs”… The jurisdiction is compensatory, and an applicant has to show a causal connection between the conduct of which complaint is made and the costs it seeks to have met or disallowed… Second, under… CPR rule 44.11(1) and (2)… An order under CPR rule 44.11 can only be made against a party or a party’s legal representative. The jurisdiction is not compensatory: it is not necessary to show that the applicant has suffered any loss as a result of the misconduct. It is a jurisdiction intended to mark the court’s disapproval of the failure of a party or of a legal representative to comply with his duty to the court by way of an appropriate and proportionate sanction… The CPR do not attempt any definition of “unreasonable or improper conduct” for these purposes… It was however common ground before us that “unreasonable” and “improper” here have the same meanings as they have in the wasted costs provisions, for the reasons given by Dyson LJ in Lahey v Pirelli Tyres Limited… both provisions apply to legal representatives, and it is unlikely that it was the draftsman’s intention that such a representative could be liable under CPR rule 44.11 in circumstances in which a wasted costs order could not be made. Therefore, a similarly narrow construction of the terms should be given in each context; and it is appropriate to look to wasted costs authorities for guidance on the scope of “unreasonable or improper” conduct in the context of CPR rule 44.11… To show a breach of that duty, it is not necessary to establish dishonesty… indeed, later cases have suggested that the wasted costs procedure – essentially summary in nature – may be inappropriate to deal with allegations of dishonesty…” ‘As officers of the court, solicitors are trusted not to mislead or to allow the court to be misled. This elementary principle applies to the submission of a bill of costs’. ‘RSC Order 62 rule 29(7)(c)(iii) [now CPR PD 47 paragraph 5.21] requires the solicitor who brings proceedings for taxation to sign the bill of costs. In so signing he certifies that the contents of the bill are correct. That signature is no empty formality. The bill specifies the hourly rates applied, and the care and attention uplift claimed. If an agreement between the receiving solicitor and his client… restricted (say) the hourly rate payable by the client, that hourly rate is the most that can be claimed or recovered on taxation…. The signature on the bill of costs under the rules is effectively the certificate by an officer of the court that the receiving party’s solicitors are not seeking to recover in relation to any item more than they have agreed to charge their client ... The court can (and should unless there is evidence to the contrary) assume that his signature to the bill of costs shows that the indemnity principle has not been offended…. … [T]he other side of a presumption of trust afforded to the signature or an officer of the court must be that breach of that trust should be treated as a most serious disciplinary offence.’

Second, under… CPR rule 44.11(1) and (2)…

[28]At paragraph 26 of his judgment Hickinbottom LJ summarised the Ridehalgh v Horsefield and Lahey v Pirelli Tyres Ltd principles as applicable under CPR 44.11: i) A solicitor as a legal representative owes a duty to the court, and remains responsible for the conduct of anyone to whom he subcontracts work that he (the solicitor) is retained to do. That is particularly so where the subcontractor is not a legal representative and so does not himself owe an independent duty to the court. ii) Whilst “unreasonable” and “improper” conduct are not self-contained concepts, “unreasonable” is essentially conduct which permits of no reasonable explanation, whilst “improper” has the hallmark of conduct which the consensus of professional opinion would regard as improper. iii) Mistake or error of judgment or negligence, without more, will be insufficient to amount to “unreasonable or improper” conduct. iv) Although the conduct of the relevant legal representative must amount to a breach of duty owed by the representative to the court to perform his duty to the court, the conduct does not have be in breach of any formal professional rule nor dishonest. v) Where an application under CPR rule 44.11 is made, the burden of proof lies on the applicant in the sense that the court cannot make an order unless it is satisfied that the conduct was “unreasonable or improper”. vi) Even where the threshold criteria are satisfied, the court still has a discretion as to whether to make an order. vii) If the court determines to make an order, any order made (or “sanction”) must be proportionate to the misconduct as found, in all the circumstances.”[29]At paragraph 103 of his judgment Hickinbottom LJ emphasised:
“… it seems to me to be an important matter of principle that solicitors on the record – and other authorised litigators and “legal representatives” for the purposes of the CPR – understand that they remain ultimately responsible for the acts and omissions of those to whom they delegate parts of the conduct of litigation, particularly where those to whom such work is delegated are not authorised. It is only in that way that the supervisory jurisdiction of the court can be effectively maintained.”
[30]In GSD Law Ltd v Craig Wardman [2017] EWCA Civ 2144 the appellant, a firm of solicitors, had acted for 14 claimants in personal injury actions. The claims were successful and the firm served informal costs schedules on a without prejudice basis. The schedules were not agreed by the respondents and the firm filed a bill of costs for each case.[31]In combined detailed assessment proceedings the respondents alleged that the bills of costs were substantially lower than the preceding schedules, and that that the solicitors had made a systematic attempt by to claim more in the schedules than was properly claimable. The parties selected two sample cases and the firm filed witness statements from its sole principal, who was cross-examined at some length and whose evidence the regional costs judge ultimately found to be dishonest.[32]The hearing lasted three days. The judge found the allegations against the firm (including bill certification in breach of the indemnity principle) proven, and concluded that an appropriate sanction was to disallow all costs on the sample files under CPR r.44.11(2).[33]The appellant in the Court of Appeal argued that the proceedings had been unfair, relying on procedural guidance given in Ridehalgh v Horsefield for wasted costs applications. The proper way for the paying parties to have advanced a complaint founded on allegedly dishonest costs claims would, argued that the appellant, have been by way of a civil action for fraudulent misrepresentation.[34]At paragraphs 37 to 39 of his judgment, Newey LJ indicated that whilst an application under CPR 44.11(2)(b) based on the conduct of a representative “before or during the proceedings” might be indistinguishable from one under the wasted costs jurisdiction, on an application for the disallowance of costs under CPR 44.11(2)(a), based on unreasonable or improper conduct in connection with the assessment of those costs, the procedural guidance given in Ridehalgh v Horsefield is much less relevant. The appeal was dismissed.

The Factual Background

[35]In order to understand the basis for the third Defendant’s application, it is necessary to know something of the long history of these detailed assessment proceedings.[36]The Claimant’s underlying claim was for personal injury and property damage. The case started in the County Court and went to an appeal in the High Court, in which Kerr J made the costs order of 22 November 2017.[37]The Claimant has produced two very different bills of costs for the purposes of recovering the costs due to him under the order of 22 November 2017. The first (“the First Bill”) was received by the third Defendant’s representatives on 9 July 2018. The second (“the Second Bill”), which replaced the First Bill, was received on 9 August 2021.[38]The costs and disbursements claimed by the Claimant from the third Defendant in the Second Bill are divided into three periods. Between 14 August 2012 and 19 March 2013 (shortly before proceedings were issued), the Claimant instructed Lords Solicitors LLP, who instructed counsel on his behalf (Ms Alexandra Wills). Between 20 March 2013 and 9 May 2015, the Claimant acted in person, instructing Ms Wills (and, on two occasions, Mr Nicholas Baldock) on a direct access basis. From 29 May 2015 to the conclusion of the detailed assessment proceedings, Lords were on the court record for the Claimant.[39]In fact, as will become evident from the history of the assessment proceedings I am about to relate, the exact division of responsibility between the Claimant, his solicitors, counsel and external cost professionals from time to time is less clear than one might reasonably expect.[40]The third Defendant’s solicitors throughout have been Horwich Farrelly, instructing Mr Kevin Latham of counsel.[41]The Claimant was due to commence detailed assessment proceedings by 22 February 2018. On 24 April 2018, the Senior Costs Judge heard an application by the Claimant for an extension of time (based as I understand it on the fact that at the time, permission was being sought for a further appeal). Although Lords had been on the court record as his solicitors since May 2015, the Claimant appeared in person and presented to the court documents summarising the costs that he was seeking to recover. His summary indicated that his liabilities to Miss Wills totalled £36,700 and to Lords £7,800.[42]The Senior Costs Judge extended time for service of the bill to 25 June 2018. Two weeks after that date, on 9 July 2018, Ms Wills on behalf of the Claimant sent to Horwich Farrelly a Notice of Commencement along with the First Bill, which totalled £158,769.09. The bill bore on its backsheet the name and address of Ms Wills and the Notice of Commencement identified Ms Wills as the person upon whom Points of Dispute should be served, rather than Lords as the solicitors on the record for the Claimant.[43]The First Bill was divided into six parts. Part 1 represented the fees of Ms Wills on the personal injury claim, for a period between 18 September 2012 and 15 March 2016. Details of the work undertaken by Ms Wills, the dates upon which the work was undertaken and the amounts payable were set out in the body of the bill with time spent on documents set out in accompanying schedules, much as if the work had been undertaken by a solicitor on the record for the Claimant.[44]Part 2 of the First Bill represented the costs of the Claimant as a litigant in person, from issue of the claim on 17 May 2013, to 2016; the precise period is unclear.[45]Part 3 represented the costs of Lords as solicitors representing the Claimant between 13 August 2012 and 29 March 2016, with Ms Wills’ fees shown (as one would expect) as solicitors’ disbursements.[46]Part 4 represented the fees of Ms Wills on the appeal, again presented as profit costs, over the period between 8 March 2017 and 29 November 2017.[47]Part 5 represented costs of the Claimant acting in person on the appeal for an unspecified period in 2017.[48]Part 6 represented the costs of Lords on the appeal, between 8 March 2017 and 17 November 2017, with Ms Wills’ fees again shown as disbursements. (Lords’ total profit costs in parts 3 and 6 came to about £18,500.)[49]It will be evident that these periods overlap. The First Bill did not make it clear when the Claimant was represented by Lords and when he was acting in person. The information as presented in the First Bill is also confusing. By way of example, Part 3 of the First Bill incorporates as a disbursement a fee of Miss Wills for advising on 18 September 2012, but there is a separate entry for the same date in Part 1 of the bill, suggesting that Miss Wills was charging the Claimant directly at the same time as she was rendering fee notes to Lords.[50]In Parts 1 and 4 of the First Bill Counsel’s fees for Part 1 and 4 alone came to £112,675, and overall to almost £118,000.[51]Notwithstanding that, the First Bill was not, when sent to Horwich Farrelly, accompanied by any Counsel’s fee notes (or other disbursement vouchers) in accordance with Practice Direction 47, paragraph 5.2.[52]It seems clear to me that the First Bill was wrongly drawn. For the period it covered, either the Claimant was a litigant in person or Lords were on the court record as his solicitors.[53]By virtue of CPR 46.5, Litigants in Person are entitled to recover costs for the same categories of work and disbursements as would have been allowed had the work been done or the disbursements incurred by a legal representative. The First Bill should, accordingly, have identified the period when the Claimant was conducting proceedings in person, and for that period shown the fees due to Ms Wills as disbursements. In support, in accordance with the Practice Direction, it should have been accompanied by her fee notes.[54]From 29 May 2015, given that Lords were on the court record for the Claimant, they are taken by virtue of CPR 42.1(1) to have been acting for the Claimant. From that point the Claimant had no right to claim (as he did) costs as a litigant in person, because he had a solicitor on the record. For the period when Lords were on the record, the bill should have been drawn on the basis that Lords were the solicitors with responsibility for the claim (however much of the necessary work the Claimant was himself undertaking). Again, Ms Wills’ fees for that period should have been shown as disbursements, whether or not they were paid directly by the Claimant, and they should have been supported by fee notes.[55]Nor did the bill comply with the requirement of Practice Direction 47, paragraph 5.8(7) that it be divided into parts so as to distinguish (for the purposes of applying the appropriate proportionality test) between costs shown as incurred for work done before 1 April 2013 and costs shown as incurred for work done on or after 1 April 2013.[56]The certification of the First Bill was also unsatisfactory. Bills of costs for assessment between parties must, in accordance with paragraph 5.21 of Practice Direction 47, bear prescribed certificates, including certificates to the effect that the bill is accurate and that the costs claimed do not exceed the costs which receiving parties are required to pay to their legal representatives.[57]The First Bill as filed at the SCCO (two years and nine months later: the sequence of events is set out below) had two certification pages. One provided for signature by both Ms Wills and Lords, but the certificates were not completed and the page was unsigned. The other was signed by an unnamed “Partner in the firm of Lords Solicitors”, but the certificates were not completed. It would appear that a copy of the bill sent to Horwich Farrelly in July 2018 was accompanied by a further certification page, again signed by an unnamed “Partner in the firm of Lords Solicitors”, in which Lords certified the accuracy of the bill but the certificates were not adequately completed.[58]In Points of Dispute dated 16 August 2018, the third Defendant took issue with the format and certification of the bill and raised a concern about the indemnity principle, in particular given the difference between the figures in the First Bill and the information provided by the Claimant to the Senior Costs Judge in April 2018.[59]On 30 October 2018 the third Defendant offered, in an email sent by Horwich Farrelly to Lords and copied to Ms Wills, to settle the Claimant’s costs in the sum of £50,000. That offer was not accepted.[60]Between late 2018 and early 2019, the parties were discussing the making of an interim costs payment by the third Defendant to the Claimant in the sum of £50,000. There seems to have been a degree of confusion on Horwich Farrelly’s part about whether such a payment had already been made to Lords. That seems to have prompted a letter from Lords to Horwich Farrelly on 7 February 2019 in which they denied having received any payment and warned that “should our interests be compromised in any way, we shall seek our costs and liabilities to third parties from yourselves or your insurer client directly.” The letter went on to say that “given that counsel has dealt with this matter from the beginning, kindly continue to correspond with counsel as usual, by email.”[61]I understand that at some point, Ms Wills sent a similar notice to Horwich Farrelly. Such notices could only be explained by both Ms Wills and Lords being concerned that costs might be paid directly to the Claimant, so preventing them from recovering their fees from the monies received.[62]That concern does not seem to have been completely unfounded. On 15 February 2019, at which point Horwich Farrelly were ready to send the money to Lords, the Claimant telephoned Horwich Farrelly and said that any costs should be paid directly to him. Having explained to the Claimant that he should not speak to them directly whilst Lords were on the record, and having consulted both Lords and Ms Wills, Horwich Farrelly accepted Ms Wills’ assurance that Lords was still on the record and should receive payment in that capacity, and arranged the interim payment accordingly.[63]The Claimant had issued an application for an interim payment, but this was resolved by a consent order that provided for the costs of the application to be reserved.[64]At some point during this period Bidwell Henderson Costs Consultants Ltd appear to have been instructed on behalf of the Claimant, but in April 2019 they confirmed that they had no further instructions and referred Horwich Farrelly back to Ms Wills.[65]By virtue of CPR 47.14, the Claimant was required to file a request for a detailed assessment hearing (form N258) within 3 months of the time allowed by the Senior Costs Judge for service of the Claimant’s bill (so, by 25 September 2018). The Claimant did not do so. Between April 2019 and October 2019, Horwich Farrelly sent a series of communications asking whether a detailed assessment hearing has been requested by the Claimant. Initially, these enquiries were directed to Bidwell Henderson, but on being referred back to Ms Wills, Horwich Farrelly sent them to Ms Wills and to Lords. They received no answer.[66]On 6 July 2020 Horwich Farrelly wrote to Ms Wills, with a copy to Lords, advising that they were instructed to issue an application under CPR 47.14 requiring the Claimant to file a request for a detailed assessment hearing, failing which costs would be disallowed.[67]Horwich Farrelly also indicated that the third Defendant was willing to reopen the previous offer of £50,000 on the basis that there be no order for costs between the parties in respect of the detailed assessment proceedings, to remain open until the application was issued or the date of rejection. On 7 July 2020 Horwich Farrelly confirmed that the offer would remain open until 14 July 2020 or until it was rejected.[68]On 10 July 2020 Ms Wills wrote to Horwich Farrelly stating that Lords were on the record and querying why correspondence had been addressed to her. Lords wrote to Horwich Farrelly on 13 July requesting a 14-day extension whilst they obtained instructions. This was agreed.[69]Following expiry of that period Horwich Farrelly were copied into to an email from Lords to both Ms Wills and Mr Singh, in which Lords said that they had no instructions from Mr Singh and that Mr Singh should either contact Ms Wills or liaise directly with Horwich Farrelly.[70]On 2 November 2020 Horwich Farrelly wrote to Lords and Ms Wills advising that as they had still heard nothing, they had been instructed to issue the CPR 47.14 application. No response was received and following some difficulties with filing the application was filed on 15 March 2021 and listed for hearing on 12 April 2021.[71]The application was served on 1 April 2021. On 7 April 2021 Horwich Farrelly received an email from Bidwell Henderson Costs Consultants, confirming that an application for a hearing in form N258 had been filed with the court and that they had no instructions in relation to the third Defendant’s unless order application, although they suggested that it was no longer required.[72]In the course of preparing this judgment I have noted that the request for a detailed assessment hearing was in fact filed on 8 April 2021, and that it was accompanied by a small number of disbursement vouchers and fee notes which evidently still had not, at any point during the 2 years and 9 months since the First Bill was sent to Horwich Farrelly, been provided to the third Defendant. They include one fee note from Mr Baldock for advising and representing the Claimant on a direct access basis on 7 and 21 October 2014, and two from Ms Wills for advising and drafting on 13 August and 18 September 2012. The fees in question appear in part 3 of the First Bill, and for Ms Wills come to £2,000. The Claimant neither filed nor served fee notes in support of Ms Wills’ fees of £112,675, as claimed in parts 1 and 4 of the First Bill.[73]On 9 April 2021 Bidwell Henderson served an amended version of the First Bill in which Lords certified their parts of the bill, Ms Wills certified hers and the Claimant certified the accuracy of the entire bill. The First Bill was otherwise unchanged. (An updated, “re-amended” version of the certificates was filed on 5 May 2021, but nothing seems to turn on that.) Again, no disbursement vouchers were provided.[74]The parties reached an agreement, embodied in a consent order dated 9 April 2021, to the effect that the Claimant would pay the third Defendant’s costs of the CPR 47.14 application at £2,500, to be set off against the Claimant’s costs entitlement under the notice of commencement dated 9 July 2018. The order also provided for the Claimant to file any replies to the Defendant’s Points of Dispute by 14 May 2021. By agreement, that period was extended to 4 June 2021. The Replies were provided by Ms Wills on Sunday 6 June 2021.[75]Those Replies, having been superseded by the service of the Second Bill, were not put to me on the detailed assessment of the Claimant’s costs. I have however noted that they confirmed that the First Bill had been certified by Mr Butt of Lords and that the fee earner with conduct of the case on behalf of the Claimant had been Mr Viswanath, a partner in Lords; they averred that counsel had been in correspondence with the clerk to the Senior Costs Judge in April 2018, and had in correspondence indicated that the documents produced by the Claimant to the court on 24 April 2018 were not intended to represent the entirety of the Claimant’s costs; and they argued that documents prepared by a lay person and not verified by legal representatives did not offer a proper basis for questioning the veracity of the Claimant’s bill. The Replies also confirmed that Lords had been on the court record from 2015 and had not come off the record since.[76]The matter came before me for directions on 14 June 2021. Ms Wills represented the Claimant and Mr Latham the third Defendant. I directed that the Claimant serve disbursement vouchers in support of the bill, to include all fee notes of Miss Wills, by no later than 4pm on 12 July 2021. I also directed that the Claimant, either by way of a schedule or, if so advised, by way of an amended bill of costs, by 26 July file and serve a document identifying the amount of costs claimed in the bill which were incurred up to and including 31 March 2013, and the amount of costs claimed in the bill which were incurred from 1 April 2013; and the periods of time during which the Claimant was instructing Lords Solicitors (whether they were on the record or not) and the periods of time when he was acting as a litigant in person. My directions made provision for the service of amended Points of Dispute by the third Defendant, if necessary, and for a detailed assessment hearing.[77]On 12 July 2021 Ms Wills wrote to Horwich Farrelly saying that due to unforeseen circumstances, it was not possible to comply with my order in respect of disbursement vouchers and fee notes and requesting an extension of time to 26 July.[78]On 23 July 2021 Horwich Farrelly were contacted by Mr Vrahimis Orphanou, who has been a Barrister and a Law Costs Draftsman since 1974. Mr Orphanou explained that he had been instructed, the previous day, to settle the matter by negotiation or to prepare the matter for detailed assessment. Mr Orphanou indicated that he would prefer to settle the matter by negotiation and sought a response as soon as possible, as he had been instructed to comply with my order of 14 June 2021, by 26 July 2021.[79]It is not necessary to refer in any detail to the correspondence that followed between Mr Orphanou and Horwich Farrelly in relation to possible settlement. The third Defendant has cited both Mr Orphanou’s and Ms Wills’ negotiating stance (insofar as it is not privileged) in support of the application, but for reasons I shall give it do not think that it could be right to found an order under either CPR 44.11 or CPR 46.8 on the Claimant’s legal representatives’ attempts at negotiating a settlement.[80]On 26 July 2021 Horwich Farrelly received by email a fee note from Ms Wills. The fee note is dated 23 July 2021, and it bears the heading of 2 Kings Bench Walk, a chambers which Ms Wills had I understand joined in January 2021, over three years after the substantive proceedings concluded.[81]The fee note offers, over three pages, a broad narrative of work undertaken over an unspecified period. It concludes with a single figure of £126,098. The narrative starts with these words:[82]“This fee note includes the fee notes dated 13 August 2012 for £500 and 16 September 2012 for £1,500, filed and served with the Claimant’s Bill of Cost. This fee note contains fees for which the Claimant is liable to counsel for the periods and percentage set out in the order of Mr. Justice Kerr dated 24 November 2017”.[83]In fact, as I have said, neither Ms Wills’ fee notes for the work undertaken in August 2012 and September 2012, nor any other disbursement vouchers, had as yet been served upon the third Defendant.[84]The narrative in Ms Wills’ fee note mentions some hearing dates, but it does not identify the fees charged for those hearings. Generally it does not identify the dates on which work was done, the time taken or the amount charged for any particular task.[85]On the same date that Ms Wills provided Horwich Farrelly with that fee note, Lords addressed a letter to me, saying that the First Bill had been “…prepared by experienced costs draftsman/ costs lawyer Mark Bidwell (Director Bidwell Henderson Consultants) on the basis of the actual vouchers, receipts and other documentary evidence provided to them. The Schedule was prepared under the direct supervision of the Counsel Alexandra Wills who launched the bill.”[86]Lords’ letter submitted that all necessary information had already been included and that redrafting the bill or preparing a schedule in accordance with my order of 12 July would “disproportionately and unfairly cost the Claimant”.[87]In short, at the very end of the six-week period I had set for remedying the manifest errors in the drawing of the First Bill, Lords wrote to the court to notify me that they thought my order unfair and that the Claimant should not have to comply with it. I had my clerk respond on 27 July to the effect that compliance with the court’s orders is not optional.[88]I should mention that in a subsequent email apparently sent to Mr Orphanou on 3 August 2021, Ms Wills denied that she had supervised the preparation of the First Bill, saying that Lords had instructed the costs draftsman and had paid his fees, and expressing shock “that a solicitor would so expose himself and his client by making such an assertion to his opponent and the court in open correspondence”.[89]On 9 August 2021 Lords served upon Horwich Farrelly by email the Second Bill, together with a new Notice of Commencement.[90]The email stated:
“Please find attached the amended bill of costs with completed Form N252 prepared by Mr Orphanou… Mr Orphanou has been instructed directly by the client as a costs draftsman as well as advocate/barrister. You can liaise with him directly and copy us into the correspondence as solicitors on record.”
[91]This led to further correspondence, given that Mr Orphanou is not a costs lawyer with an independent right to conduct costs litigation and as a barrister is neither public access registered or authorised to conduct litigation. In consequence he could not represent the Claimant before this court other than on the instructions of the Claimant’s solicitor. Almost seven months later, on 1 March 2022, Lords confirmed that Mr Orphanou had been conducting the matter on their instructions.[92]The Second Bill totalled £85,451.24, just under 54% of the £158,769.09 claimed in the First Bill. As I have mentioned the Second Bill is divided into three parts, distinguishing properly between the period when the Claimant was acting in person and the periods when he was represented by Lords, and correctly showing Counsel’s fees as disbursements rather than profit costs.[93]Part 1 covers 14 August 2012 to 19 March 2013, when Lords were advising the Claimant pre-action; Part 2, 20 March 2013 to 19 May 2015, when the Claimant was acting in person; and Part 3 the period from 29 May 2015, when Lords were on the record for the Claimant.[94]The Second Bill was accompanied by Ms Wills’ fee note of 23 July 2021 and also, I understand, a copy of her fee note of 18 September 2012 and two lists of payments apparently made by the Claimant. It was not accompanied by any other disbursement vouchers, even those that had been filed (but not served) with the first bill. In fact Ms Wills’ fee for advising and drafting in August 2012 is omitted from the second bill.[95]Part 2 of the Second Bill (the Litigant in Person period) includes a single entry at item 47 for “apportioned counsels’ fees from 20.3.13 to 19.5.15” in the sum of £46,541. That figure bears no discernible relationship to Ms Wills’ claimed fees of £126,098, or any other of the small collection of fee notes produced, piecemeal, by the Claimant from time to time.[96]The certification of the Second Bill, like that of the First Bill, was open to challenge. It was certified by the Claimant in person, but included a certificate to the effect that “in respect of Parts 3 & 6 of the bill the costs claimed herein do not exceed the costs which the receiving party is required to pay me/my firm”. This wording, in context nonsensical and referring to a non-existent part 6 of the Second Bill, seems to have been lifted directly from the First Bill without any attempt at amendment.[97]Understandably, Horwich Farrelly took issue with what now appeared, on the face of it, to be two separate sets of detailed assessment proceedings started by two different forms N252 by a single receiving party on the authority of a single costs order. This was ultimately resolved by a consent order dated 13 August 2021 which described the Second Bill as the Claimant’s amended bill “to stand within the detailed assessment proceedings”; for the Claimant to pay to the third Defendant the costs of the detailed assessment proceedings to date; for interest on the Claimant’s costs to be disallowed to 9 August 2021; and for Points of Dispute in response to the Second Bill to be served by 16 September 2021.[98]In the course of subsequent correspondence Mr Orphanou, on 12 August 2021, said this:
“The first bill of costs is void. Ignore it. It was wrong. I am not surprised that neither you nor Master Leonard understood it. Rely on the amended Bill as served… In relation to Part 3, I considered what work Alexandra…” (Ms Wills) “… did and then I decided what a reasonable fee would be. Alexandra ought to have send me the usual Counsel's fee note as there were solicitors acting for the Claimant. I asked for it but instead, she sent a bill of costs, in the form that is usually sent by solicitors. If she were to send a fee note, I expect her claim will be more than double of what I assessed it to be when considering that her claim for total of her fees is £123,098.00.”
[99]On the same date Mr Orphanou responded to a request from Horwich Farrelly for clarification of the lists of payments attached to the Second Bill:
“There are two long lists of paid fees, one prepared by counsel Alexandra and one prepared by the Claimant. The Claimant claimed that to date he paid more than what Alexandra had claimed. Alexandra's list was prepared some weeks before the Claimant's List. Hence the difference. Alexandra is claiming total fees of £126,098.00. Having carefully considered her claims and both lists of fees I found that her reasonable fees when she was acting only under direct access ( Part 2 of the claimant's amended bill of costs) from 20.3.13 or 1.4.13 to 19.5.15 was £46,541.00 which includes the fees of Counsel Bildock which was £2,300 on brief on 9.10.14. The remaining disbursements are well described in the amended Bill. There is a Counsel's fee note for Part 1. Regarding Part 3, Counsel's fees were calculated in accordance with reasonable work done by Counsel Alexandra when instructed/briefed by Lords Solicitors.”
[100]On 8 September 2021, Horwich Farrelly asked Mr Orphanou for copies of “the retainers” (the contractual agreements between the Claimant, Lords and Counsel). On 15 September Lords sent to Horwich Farrelly a copy of a retainer document between Lords and the Claimant dated 8 August 2012, together with an undated copy of their standard terms of business, and advised that they were still waiting for Ms Wills to provide her direct access retainer agreement, which they would forward on receipt. No copy of Ms Wills’ retainer was ever seen by Horwich Farrelly or produced to the court.[101]Following an agreed extension of time, Points of Dispute were served on 22 September 2021. The Points of Dispute, among other issues, raised further concerns with the indemnity principle; included a request for an explanation of the source from which the entries for counsel’s fees in the First Bill had been drawn; took issue with the certification of the bill; and raised issues of conduct which ultimately led to the application that is before me now.[102]On 8 October 2021, Lords sent to Horwich Farrelly by email a number of documents including an “amended bill of costs with certifications” (this was a copy of the Second Bill now certified by Lords as well as the Claimant), the Claimant’s Replies to the Points of Dispute, and a bundle of additional documents.[103]The bundle of additional documents served with the Replies of 8 October 2021 comprises 103 pages. It is duplicative and disordered, and it is difficult to make sense of it. Horwich Farrelly raised a further challenge in supplemental points of dispute dated 14 January 2022, in particular on the basis that it was difficult, for the most part, to correlate the documents served with the items in the Second Bill they were intended to support, and that no retainer documentation had been forthcoming from Ms Wills.[104]The documents served with the Replies on 8 October 2021 include Mr Baldock’s fee notes from 2014, a direct access agreement between Mr Baldock and the Claimant dated 3 October 2014, Ms Wills’ fee note from 13 August 2012, and other fee notes from Ms Wills at the appeal stage.[105]The documents served on 8 October 2021 also include an almost entirely illegible fee note from Ms Wills, addressed to the Claimant for the sum of £1750, in respect of which it is not possible to identify the date or the work referred to; lists of payments apparently made to Ms Wills, Lords and others by the Claimant; and sundry documents evidencing payments made by the Claimant to Ms Wills, Lords and others from time to time.[106]Of particular note among those documents are copies of agreements between the Claimant and Lords which to my mind shed some light upon the Claimant’s repeated failures to comply with the CPR and Practice Directions throughout these assessment proceedings. The first is a handwritten agreement dated 26 May 2015 between the Claimant and Lords which provides for Lords to be paid only for being on the court record, with all work to be done by Ms Wills, her fees to be settled directly by the Claimant and Lords to have no liability for them. The agreement is expressed be subject to review after 4 months, and makes provision for Lords to be paid separately for matters such as preparing court bundles. It is accompanied by a receipt of a payment of £1,000 to stay on the court record for that period.[107]The second is an invoice dated 17 May 2017 in the sum of £1,000, inclusive of VAT, for staying in the court record up to “the last hearing”, but excluding the appeal.[108]There is also an apparent complaint by the Claimant, in an email dated 1 June 2018, that Ms Wills had not been keeping him informed in relation to her costs, which she appeared to be trying to claim separately from “the 3rd party”, and that she appeared to be waiting for him to make a claim so that she could base her claim on his; and an authority dated 8 October 2021, signed by the Claimant, for Lords to act on his behalf “in respect of the assessment of Part 2 of the amended bill of costs”.[109]The Replies denied any breach of the indemnity principle, relying upon the certification that had by now been supplied by Lords. They also stated that “The Claimant will try to provide all disbursements vouchers and proof of payment to the third Defendant and to the court”. Horwich Farrelly emailed Mr Orphanou to query whether further documentation was, as this indicated, to be served and highlighting their difficulties in understanding what had been served to date. Mr Orphanou indicated that there might be further documentation forthcoming from Mr Singh and that further replies might be served.[110]On 31 January 2022 the third Defendant made a Part 36 offer in the sum of £35,000 in settlement of the whole of the Claimant’s claim for costs, inclusive of profit costs, disbursements, VAT and interest. The Part 36 offer was accompanied by an offer “without prejudice save as to costs” to agree the Claimant’s costs at £50,000 (the sum offered by the third Defendant and rejected by the Claimant in 2018) on the basis that the Claimant would pay the third Defendant’s costs of assessment. Those would be the third Defendant’s costs from 14 August 2021, the Claimant already having agreed to pay all previous assessment costs. Both offers were rejected.[111]On 21 February 2022 Lords served on Horwich Farrelly a “case bundle”, which had they said been filed with the court (but which, according to the court file, they had not). This, say Horwich Farrelly, comprised a series of discrete PDF files. This included a “bundle of disbursements”, which was in fact an index to a disbursements bundle, and a document named “Lords Bill of Cost”. The document itself is headed “Bill of Cost”. I shall refer to it as “the Solicitor/Client Bill”.[112]The Solicitor/Client Bill sent to Horwich Farrelly on 21 February 2022 has, broadly speaking, the appearance of a simple “gross sum” bill but is lacking in particularity, especially in failing to identify the period that it covers. It is dated 15 January 2018, bears an illegible signature and incorporates a very brief narrative of work purportedly undertaken by Raji Vishwanath over 75 recorded hours at £250 per hour. It incorporates a total charge of £18,750 plus VAT: £22,500. There are no disbursements.[113]The document also bears as Lord’s reference the reference from the original King’s Bench action along with the SCCO reference for this detailed assessment, SC-2021-BTP-000433. That SCCO reference did not exist until the Claimant’s First Bill was filed with the SCCO on 8 April 2021. That was over three years after the Solicitor/Client Bill’s date of 15 January 2018. Just below those references it bears the Claimant’s name, but not his address.[114]Horwich Farrelly pointed out (rightly) that the “case bundle” did not comply with SCCO guidance for the filing of electronic bundles and queried the purpose of serving upon them the Solicitor/Client Bill. Mr Orphanou replied on 23 February 2022: “… the Lords’ Solicitor and Client bill of costs… was sent to their client Paul Singh. Copy of that was sent to you just to show that the liability of costs payable by Paul Singh to his solicitors is higher than the costs claimed by Paul Singh from your client the third Defendant”.[115]Horwich Farrelly asked when the Solicitor/Client Bill had been sent to the Claimant and the period it covered. They were told that it had been sent to him on 28 January 2018, but their query with regard to the period covered by the Solicitor/Client Bill went unanswered.[116]In view of their concerns (which were not alleviated prior to the hearing) about the way in which documents been prepared by Lords, Horwich Farrelly prepared and filed their own bundles. I have found it necessary, both during the detailed assessment and in preparing this judgment, to work from several sets of bundles, but I have relied heavily upon those filed by the third Defendant, because the multiple bundles prepared by Lords were confusing and of limited assistance.[117]Lords served an “amended costs bundle” on 24 February 2022. This included an authority signed by the Claimant on 8 July 2015, authorising Lords and Ms Wills, “without any influence from my solicitor or barrister”, to accept a Part 36 offer in settlement of his personal injury claim. It included the following passage:
“I confirm that I will not under any circumstances bring any action or complaint against Lords Solicitors or Miss Alexandra Wills in connection with or arising out of this claim. Lords Solicitors or Alexandra Wills reserve the right to bring claims against me for losses arising out of connected with any complaint or claim which is either dismissed or not upheld including losses arising out of progression time spent dealing with any such complaint or claim.”
The amended costs bundle also included a second copy of the Solicitor/Client Bill, now with a handwritten addition:
“Period Covered: 14.8.12-20.03.13 and 29.5.15-20.11.17”
. No mention of this change was made, or explanation offered, by Lords.[118]On 2 March 2022, Horwich Farrelly served on Lords a Part 18 Request. Some of the Part 18 questions related to the issue of Mr Orphanou’s purported standing as an independent representative of the Claimant, which had been resolved by Lord’s letter of the previous day, but they also addressed the Solicitor/Client Bill, asking when it was produced; who signed it; when it was delivered; and how a document dated 15 January 2018 came to bear an SCCO reference created in 2021. Horwich Farrelly also requested a copy of the Solicitor/Client Bill in its original format, rather than a scanned PDF copy.[119]Mr Orphanou responded, refusing to answer the Part 18 request and saying that any issues should have been raised in the Points of Dispute and he would deal only with such issues (apparently overlooking the fact that both the Points of Dispute and the supplemental Points of Dispute had been prepared and served before the Solicitor/Client Bill was first disclosed).[120]The Detailed Assessment hearing was listed for 8 March 2022, by Microsoft Teams, with a time estimate of 3 days. After 5 p.m. on 7 March, Lords served upon Horwich Farrelly a further “cost bundle”. This latest version of the bundle included a third version of the Solicitor/Client Bill. This version omitted the King’s Bench and SCCO references and showed instead the Claimant’s name and address, along with an internal reference. It included the handwritten addition of the period covered, but seemingly in different handwriting. Again, no mention was made of this or explanation offered by Lords.[121]On 8 March 2022 the detailed assessment hearing commenced. It was a remote hearing, held by Microsoft Teams. The Claimant was represented by Mr Orphanou and the third Defendant by Mr Latham.[122]The court’s records indicate that Lords ordered a transcript of the full hearing between 8 and 10 March 2022, but I have not seen it. According to my own record, Mr Latham drew my attention to the various versions of the Solicitor/Client Bill that had been provided by Lords and to the contrast between the Claimant’s stated liability to Lords in April 2018 (£7,800) and the much more substantial amounts claimed in the Second Bill for work performed well before that date.[123]Mr Orphanou offered a number of hypothetical reasons for Lords producing different versions of the bill on the assumption that this had been done to be “helpful”, but admitted that he did not actually know. He stated that the date that the bill had been sent to the Claimant had been confirmed to him by Ms Rahima Matloob, whom I understand to be Lords’ Practice and Compliance Manager, and to have been on holiday at the time of the hearing.[124]I was particularly surprised at the fact that Mr Orphanou did not seem to consider the third Defendant’s concerns about the Solicitor/Client Bill to be important. He seemed to take the view that the three versions of the Solicitor/Client Bill that had been produced to date were just copies and that it was open to Lords to make any amendments they wished to copies of the Solicitor/Client Bill. He did not (as one might have expected, even if Horwich Farrelly had not already requested it) offer to help identify or to arrange for the production of a credible, certified original version.[125]I did not agree with Mr Orphanou about the importance of the Solicitor/Client Bill. For reasons that are fully set out in a transcript of my decision on 8 March 2022, I concluded that I could not rely upon any of the different versions of the Solicitor/Client Bill presented by Lords, given its questionable provenance and the fact that that Lords had an opportunity to address the third Defendant’s queries about the Solicitor/Client Bill, but had not taken it.[126]This led me to conclude that whilst I could accept that there was a valid retainer from 2012 covering Lords’ costs in Part 1 of the Second Bill, I could only allow their claimed costs in Part 3 of the Second Bill if the Claimant could produce evidence that they had been paid. In coming to that conclusion I bore in mind a frank statement by Mr Orphanou that he could not vouch for the accuracy of Part 3 of the bill.[127]The other major issue addressed between 8 and 9 March 2022 was the question of Ms Wills’ fees during the time when she was acting as a direct access barrister. Mr Orphanou produced correspondence with Ms Wills (the email apparently dated 3 August 2021 to which I have already referred) in which she indicated that if the Claimant or those he had instructed wanted a copy of her file of papers, they would have to meet her reasonable costs of providing it. Ms Wills also stated that she had instructed someone to draw up a final bill to cover her outstanding fees, although to the best of my knowledge no such bill has ever been produced.[128]With regard to the single claim at item 47, Part 2 of the Second Bill for “apportioned counsel’s fees” of £46,541, at the beginning of the day on 9 March 2022, I gave a reasoned decision for disallowing all of Ms Wills’ fees in Part 2.[129]I need not repeat here the full reasons for my decision, which are set out in a transcript, but I can summarise briefly.[130]The figure of £46,541 was offered as Mr Orphanou’s best estimate of what might properly be due to counsel. He said that he was unable to itemise that figure or otherwise break it down, even by reference to the papers that he had seen in preparing the bill. He was inviting me to take a broad brush approach and take a view on what might be a reasonable recoverable total figure for counsel’s fees in Part 2 of the bill. I did not have the information upon which I could base any such judgment. I found Mr Orphanou’s single figure of £46,541, like the figure of £126,098 in Ms Wills’ July 2021 fee note, to be entirely impenetrable.[131]Practice Direction 47 sets out the way in which a bill should be drawn up. The point is to give a paying party the opportunity to raise objections to any item of cost that seems unreasonable. The paying party did not have that information. For me to have a broad guess at what a reasonable overall fee might be, or to try and identify some sort of irreducible minimum, would be unfair to the third Defendant, who had a right to understand the basis of the charges and the work done, and to an opportunity either to agree or to object.[132]The transcript of my decision shows that I said that I invited further submissions in relation to Mr Baldock’s fees in part 2 of the Second Bill. I do not believe that I heard any such submissions. In any event, item 47 was disallowed in its entirety.[133]According to my note of the remainder of the hearing on 9 March 2022, notwithstanding that I had taken some time to set out my reasoning in detail it became apparent later in the day (as the line by line assessment of the bill took us back to item 47) that Mr Orphanou was entirely unaware of the decision I had made in relation to item 47. It appeared that he also thought that he had directed me to entries in the First Bill in order to offer some detail of the work said to have been undertaken by Ms Wills and the charges rendered for it. That was incorrect, and in fact quite inconsistent with what he had said in his earlier submissions: I had understood him to say that the figures in the First Bill were not reliable, and that Ms Wills’ fee claim as a whole was not credible.[134]After he realised that the decision had been made, Mr Orphanou asked me to revisit it. He also asked me (at the end of the second day of a detailed assessment which had been listed since July 2021) to make an order compelling Ms Wills to deliver her papers and records to the Claimant. I did not believe that I had jurisdiction to do that, and in any event I would not have done so without notice to Ms Wills.[135]Mr Latham raised strenuous objections to the reopening of item 47, and I deferred my decision on whether to do so until the morning of 10 March. Lords Solicitors’ internet service failed on 10 March and the hearing was adjourned to a telephone directions hearing on 24 March.[136]At that hearing I directed that, on resuming the detailed assessment, the court would address whether the Claimant could re-open the court’s decision to disallow item 47 in the Second Bill and if so, the assessment of item 47; the remaining items left for assessment; the incidence of the costs of the detailed assessment; whether the Court should make an Order against the Claimant or against any of his legal representatives pursuant to CPR r.44.11; any outstanding matters of set-off/payment/re-payment of payments on account; and any applications from either party for permission to appeal.[137]I also gave directions for the third Defendant to file and serve the CPR 44.11 application which is the subject of this judgment, for the parties to that application to file and serve evidence, if so advised, and for those parties to attend the hearing of the application and make submissions. The evidence was to be filed and served by 27 May 2022.[138]The matter came back before this court on 18 January 2023. At the beginning of the hearing I was advised that Mr Orphanou was not pursuing his application for me to reopen the complete disallowance of item 47. That came as something of a surprise to me, because (as the Senior Costs Judge observed in Deutsche Bank AG v Sebastian Holdings Inc [2022] EWHC 2920 (SCCO)) it is not unusual for individual decisions to be revisited before a detailed assessment concludes.[139]In any event, the application having been withdrawn, the detailed assessment concluded on 18 January 2023, the Second Bill having been assessed at £14,712.51.[140]The hearing moved on to the third Defendant’s application under CPR 48.6 and CPR 44.11, which was adjourned part heard to 5 May 2023. Mr Butt, attending for Lords, indicated that Lords might wish to file and serve further evidence, so directions were given with a view to hearing an application to that effect on 28 March. Lords did not, however, make any such application, and submissions concluded on 5 May.[141]Mr Martin Forde KC represented Ms Wills on the Claimant’s application: he has asked me to make it clear that he has been instructed only in relation to that application against Ms Wills, not in relation to any aspect of the detailed assessment itself, and I do so now.[142]Lords represented themselves on 18 January 2023, but for the hearing on 5 May they instructed Mr Henry Mainwaring.

The Evidence

[143]Evidence in support of the third Defendant’s application has been given by Mr Paul McCarthy, a costs lawyer and a partner in Horwich Farrelly. His key evidence is in a statement dated 8 April 2022 which, broadly speaking, comprises a recital of the events to which I have referred, pointing for example to the Claimant’s multiple breaches of rules, orders and practice directions and the remarkably unsatisfactory way in which his claim for costs has been presented. He also states plainly his belief that the Solicitor/Client Bill, bearing as it did a reference created in 2021, cannot have been delivered in 2018. In other words he says that it was not a genuine document, but manufactured years after the purported date of delivery.[144]On the basis that the Claimant is likely to be held liable to pay the third Defendant’s costs of the detailed assessment proceedings, Mr McCarthy estimates the Claimant’s likely overall liability to the third Defendant following the conclusion of the detailed assessment proceedings to include the repayment of the interim payment made by the Defendant is likely to be over £100,000.[145]Given the tensions which clearly existed between the Claimant, Lords and Ms Wills from time to time, and the disputes or potential disputes that appear to have been disclosed in the course of the detailed assessment proceedings, Mr McCarthy has expressed some concern about the extent to which the Claimant’s legal advisers may have been advancing their own interests, rather than those of the Claimant, in the course of the detailed assessment proceedings. He queries how, given the difficulties that have emerged in supporting the Claimant’s costs claim, the Claimant could ever have been sensibly advised to reject the Defendant’s settlement offers.[146]Ms Wills did not offer any evidence.[147]Mr Orphanou has filed a witness statement dated 21 May 2022. He accuses the third Defendant’s representatives of deliberately running up costs on spurious grounds. He has challenged Horwich Farrelly’s authority to make the application. I can find no substance in that, based as it appears to be on nothing but Mr Orphanou’s claimed experience of acting for insurers.[148]Mr Orphanou has also accused Mr McCarthy in particular of misconduct on grounds that I do not feel the need to recite, bearing in mind first that Mr McCarthy’s conduct is not in issue and second that I can find no substance in any of them. I can observe that they are largely based upon the proposition that the Defendant should have accepted stoically the self-evidently unsatisfactory management of the Claimant’s case from the outset of the assessment proceedings to their conclusion.[149]I do need to refer to Mr Orphanou’s response to Mr McCarthy’s reference to “guesswork”:
“I think I said ‘Estimated’ not ‘Guesswork’. If, however, I said Guesswork, I really meant Estimated. I went through all available and relevant documents and the case and including the first bill of costs drafted by Mark Bidwell Costs Draftsman and using my vast experience I estimated what I considered to be reasonable costs of the Claimant (when he was acting in person) and of counsel and of most of solicitors’ fees. What else could I have done ?”
[150]Mr Orphanou also says that Mr McCarthy is accusing him of conspiring with Lords to deceive the court by altering the Solicitor/Client Bill. He addresses the issue of the Solicitor/Client Bill itself in repetitive fashion:
“Detailed explanation was given to the costs judge at the detailed assessment hearing by Lords Solicitors. Neither the substance nor the fees charged were altered. The non fee earner employee made the changes with the sincere intention to assist Paul McCarthy to identify the document and the dates that the charges related to and to inform/prove that there was no breach of the indemnity principle. There is no reason to believe that the non fee earner employee intended to deceive or mislead anybody. It was served by way of information only to Paul McCarthy. It was Paul McCarthy who placed it as evidence in court to embarrass the solicitors and wrongly accuse them for breaching the Civil Proceedings Rules. The solicitors, explanation ought to have been accepted by Paul McCarthy and say no more… I was not creating evidence or amending the document after the event. The non fee earner who amended and served the document said (I paraphrase) that she was not amending the original or the main part of the bill and that she did not intend to deceive any body. There was nothing to be gained for by amending the copy. She served it by way of information only to assist D3’s solicitors and to inform them how much the Claimant was liable to pay to Lords Solicitors i.e. to prove that there was no breach of the indemnity principle. In fact, it was Paul McCarthy who intentionally filed it in court by way of evidence to get lords solicitors in trouble.”
[151]There are a number of points to be made about this evidence. The first is that, whatever Mr Orphanou may say, I did not receive any explanation at the detailed assessment hearing for the anomalies in the Solicitor/Client Bill or the alterations made to it. Mr Orphanou now repeats as a factual assertion what he offered, in the detailed assessment hearing, as speculation.[152]Second, it does not seem to me to have been suggested that Mr Orphanou had any part in the production of the Solicitor/Client Bill: it seems fairly obvious that he did not.[153]Third, it is manifestly absurd to complain that Mr McCarthy brought to the attention of the court a document which had, expressly, been produced by Lords to meet the third Defendant’s indemnity principle concerns, and which Lords had told him they had themselves filed at court.[154]Fourth, it is unsatisfactory that Mr Orphanou goes at such lengths to convey the purported evidence of a third party said to have produced the Solicitor/Client Bill, without naming his source in accordance with Practice Direction 32 paragraph 18.2(2), and where no evidence has been produced from the unnamed person said to have been responsible. Even in that context, Mr Orphanou speaks in general terms of amendments without addressing directly the question of how a 2018 document came to bear a reference from 2021.[155]This takes me to the evidence of Mr Vishwanath, a partner in Lords, in a statement dated 23 May 2022. Like Mr Orphanou, Mr Vishwanath accuses Horwich Farrelly of deliberately running up costs for no good reason. Like Mr Orphanou, he queries their authority to act on this application on what appear to me to be wholly hypothetical grounds. He raises a number of procedural points which I will not recite here, as they appear to me to have neither relevance nor merit.[156]Mr Vishwanath does raise a more relevant argument to the effect that the Claimant’s application is disproportionate and unsuitable for summary determination, but that is a procedural point which belongs in submissions, not in witness evidence. It is addressed below.[157]I have identified only two attempts in Mr Vishwanath’s evidence to address the conduct issues that have arisen in this case. The first is his assertion “that there were no delays and all court orders were adhered to”. That is patently untrue, and all the more remarkable given Lords’ flat refusal, on behalf of the Claimant, to comply with the court’s order of 14 June 2021.[158]Mr Vishwanath’s second attempt to address the conduct issues is a response to the concerns raised by Mr McCarthy about the Solicitor/Client Bill in its various iterations. It comprises a short assertion to the effect that “this was a clerical error at Lords Solicitors LLP which has been addressed and rectified”. Precisely what the error was, and how it was rectified, goes unstated.[159]The Claimant has filed a brief statement dated 24 June 2022, in which he states that Lords have advised him to seek independent advice but that having “carefully considered my options… confirm Lords Solicitors will remain my solicitors in this case and I have full trust in them.” Such evidence as I have seen of the dealings between the Claimant, Lords and Ms Wills is not really suggestive of such a degree of trust. At the very least, it does not appear to have been mutual.[160]The rest of the Claimant’s statement tends to echo the content of those made by Mr Orphanou and Mr Vishwanath a month earlier. He accuses the third Defendant of attempting to create conflict between him and his solicitors and of attempting to increase costs, and he states that “I and my legal representatives have complied with the court orders and any legal requirements”, which makes one wonder what advice he has received in that respect.

Submissions

[161]Although I believe that I have taken all of the parties’ submissions on board, I do not find it necessary to refer to most them in detail. I should mention that Mr Mainwaring, counsel instructed by Lords (it would appear) shortly before the reconvened hearing on 5 May 2023, submitted that the grounds offered by Mr McCarthy for the third Defendant’s application lack particularity, in particular as to the responsibility of each of the Claimant’s legal representatives for the conduct complained of: and that a property particularised case would require a degree of investigation quite unsuitable for a jurisdiction that is meant to be exercised in a summary and cost-effective fashion.[162]It seems to me (bearing in mind in particular Wardman v GSD Law Ltd) that the key question is whether the way in which the application has been heard is fair to Ms Wills, Mr Orphanou and Lords. It seems to me that it has. The third Defendant’s application has been made under both CPR 46.8 and CPR 44.11, and the key criterion common to both provisions, which is that they have had a reasonable opportunity to respond, has been met.[163]The third Defendant has in my view done everything reasonably possible to identify the failings in the management of the Claimant’s case in the detailed assessment proceedings and the persons responsible. That includes the preparation by Mr Latham of a schedule allocating responsibility for every breach of rules, as far as possible, between the three respondents to the application. Given the often unclear allocation of responsibility among the various advisers for the Claimant; the repeated and determined efforts made by the Claimant’s solicitors of record to pass responsibility to others; and the apparent reluctance on the part of both Ms Wills and Lords to give any evidence of substance, I do not see how the third Defendant could have done more.[164]It seems to me that there will be no unfairness in my coming to such conclusions as I can on the evidence that has been made available.[165]I should also mention an argument raised by Mr Forde to the effect that it would not be appropriate to order that Ms Wills bear any part of the costs of the detailed assessment proceedings, bearing in mind that her involvement ceased before, by agreement, an order was made for the withdrawal of that bill with the Defendant to pay the cost of the assessment process to 13 August 2021 and to forfeit interest.[166]Mr Latham has in response referred me to many examples, in the authorities to which I have been referred, of wasted costs orders being made against parties’ representatives after a costs order had already been made against the parties themselves. Bearing in mind that wasted costs applications are normally made (and expected to be made) at the conclusion of proceedings, that is perhaps inevitable, and I think Mr Latham must be right in saying much the same would seem to apply to applications under CPR 44.11.[167]I think that Mr Forde’s point rests more upon the argument that the Claimant and the third Defendant came to an agreement which resolved all the matters of which the third Defendant now complains in respect of the First Bill.[168]Given the lack of information regarding the division of responsibility between Lords and Ms Wills, a legitimate concern about the extent to which the Claimant’s advisers had been representing their own interests rather than the Claimant’s and the unsatisfactory presentation of Ms Wills’ claim for fees, the third Defendant in my view had sound reasons for joining Ms Wills to this application. I agree that the Claimant’s agreement to meet the third Defendant’s costs of preparing the First Bill is something to be borne in mind, but it does not in itself furnish Ms Wills with a complete answer to the application.

Conclusions: Negotiations

[169]I do not believe that it could be right to impose a penalty under either CPR 48.6 or CPR 44.11 based on criticism of the negotiating position taken by either the Claimant or his advisers from time to time.[170]Mr McCarthy argues that it can never have been appropriate for the Claimant’s advisers to advise him to reject the third Defendant’s offers in settlement of costs.[171]I am not sure that that is necessarily right. The outcome of this detailed assessment has resulted from the voluntary abandonment of much of the information included in the First Bill; from the unsatisfactory way in which information in support of the Second Bill was presented; and from the abandonment of the Claimant’s attempts to remedy some of those shortcomings. Differently managed, the outcome of the assessment might have been very different. I cannot know.[172]I bear in mind that the approach of the Claimant and his advisers to settlement will have been based on their perception of the value of, and the risks attendant on, his claim at the time discussions were taking place. I do not think that it could be right to apply hindsight to criticise their conclusions.[173]Mr McCarthy also makes the point that no settlement offer has ever been made on behalf of the Claimant. Some figures were mentioned, from time to time, by his advisers, but without instructions and (Mr McCarthy would say) far in excess of anything which the Claimant might realistically have expected to recover.[174]This takes me to my main point with regard to negotiations. Whether to make an offer, how to formulate it, and whether to wait for the other party to make an offer or to improve upon an existing offer, is a matter of judgment and the assessment of risk. I find it difficult to envisage circumstances in which it would be appropriate to bring such matters within the scope of CPR 46.8 or CPR 44.11.[175]With regard to the parties themselves, there are ample provisions within the CPR for encouraging a realistic approach to settlement, and I do not believe that CPR 44.11 is intended to add to them.[176]As for a party’s advisers, quite apart from the difficulties presented by questions of hindsight and privilege it seems to me that legal advisers owe their duties in that respect to their client, not to the court, and that it is not the role of the court under CPR 48.6 or CPR 44.11 to enquire into such matters.[177]That seems to me to dispose of the only ground upon which any of the Claimant’s legal representatives might be ordered to pay the entire costs of the detailed assessment proceedings under either CPR 46.8 or CPR 44.11(2)(b). one must look to the costs consequences of specific acts or omissions.

Conclusions: Ms Wills

[178]As Mr Forde points out, Ms Wills played no part in the detailed assessment proceedings after 26 July 2021, when she sent to Horwich Farrelly a copy of her fee note. She cannot have been responsible for the production of the Second Bill; for the substantial reduction in her claimed fees within that bill; for the inadequate fashion in which the reduced figure was presented in the Second Bill; or for the abandonment of Mr Orphanou’s attempts to persuade me to reopen item 47.[179]Obviously, Ms Wills’ fee note of July 2021 is on its face an unusual and unhelpful document. One has to bear in mind however that when it was prepared Ms Wills had already taken responsibility for, and certified, her parts of the First Bill, which incorporated a detailed breakdown of the work that Ms Wills said she had undertaken on behalf of the Claimant. Notably the First Bill includes her fees for checking Part 1 and 4: she had effectively vouched for those fees, even before certification. I do not think that the Claimant’s email of 1 June 2018 offers any sound basis for supposing that she did anything other than produce that breakdown from such records as she had.[180]I do not know why Ms Wills did not reprise that breakdown in preparing her July 2021 fee note, or why the figure in her fee note exceeds the figures in the First Bill. Even so, arguably at least, she had already provided the information needed to understand the basis upon which she was claiming most of her fees, and the form of her fee note cannot in itself be said to breach any rule, practice direction or order.[181]On the evidence it was Mr Orphanou (albeit on behalf of the Claimant) who took the view that all of the detail of Ms Wills’ work incorporated in the First Bill should be abandoned. He did so in the face of Ms Wills’ refusal to part with any of her records without her reasonable costs of doing so being met, and where he had very little time to act, having been instructed by Lords at the very end of a period allowed for corrections to the errors in the First Bill.[182]Ms Wills has been criticised for not producing her retainer, but in the normal course the Claimant would already have a copy of her retainer and she would be under no obligation to supply him with another. I do not believe that she can properly be criticised for asking that the Claimant cover the costs of her supplying copies of her records (an option that does not seem to have been followed up by the Claimant or his representatives). Most solicitors would ask as much. Where, like Ms Wills, they are claiming unpaid fees, they might well refuse to part with their records at all, and if their claim for fees has any validity they could justify that refusal.[183]It has been suggested that Ms Will’s claim for fees was always unsustainable. Evidently Mr Orphanou took the view that many of the fees claimed by Ms Wills in the First Bill would not stand up to scrutiny. I understood him to say as much in the assessment hearing. I do not know whether he was right. I was not asked to assess the First Bill, and due to the abandonment of Mr Orphanou’s application to revisit item 47 in the Second Bill, I was not invited to judge it by reference to any of the detailed entries in the First Bill. Ms Wills’ claimed fees have never really been tested, and I have no good reason to suppose that her conduct in claiming her fees is open to question.[184]I do not regard the delay in commencing detailed assessment proceedings, beyond the period allowed by the Senior Costs Judge, to have been significant. Nor do I think it right to take account, for present purposes, of other delays that were largely covered by agreed extensions of time.[185]There was of course a very significant delay in requesting a detailed assessment hearing for the First Bill, but I have no basis for concluding that Ms Wills was responsible for the delay. Given that Bidwell Henderson ultimately attended to the request, it would seem that she was not.[186]As I have observed, the First Bill was wrongly drawn. I am not able to attach any weight to Lords’ claim that Bidwell Henderson did so under Ms Wills’ supervision. Ms Wills has denied that. Unlike Lords, she was not on the record for the Claimant at the time, and (for reasons that will, when I come to address their role in this matter, be apparent) I do not regard Lords’ assertions as reliable, in particular when it comes to assigning responsibility to others.[187]Ms Wills certified her parts of the First Bill and sought a fee for checking them. She must in principle bear some responsibility for the incorrect manner in which her fees were presented, but that in itself need not have been a major problem.[188]I accept that, on sending the First Bill and Notice of Commencement to Horwich Farrelly, Ms Wills should have ensured that they were accompanied by disbursement vouchers and she should have ensured that the First Bill was properly certified.[189]The great majority of the disbursements in the bill, however, were her own fees. The point of the requirement to produce disbursement vouchers is to verify the disbursements that are claimed in the bill. Where the great majority of those disbursements are counsel’s fees, and counsel herself (even before certification) has effectively vouched for those fees, the omission seems to me to be of less significance than might normally be the case.[190]Errors in certification, and the omission of disbursement vouchers, are not uncommon and although they tend to provoke stern and voluble protests from paying parties, it is usually not difficult to remedy them. A proportionate response, in my view, is normally limited to making appropriate directions for disbursement vouchers to be supplied and for certificates to be completed. There may be costs consequences for the receiving party, but one would not normally look beyond that.[191]There is no reason to suppose that Ms Wills was responsible for the Claimant’s failure to comply with my order of 12 June 2021 beyond a two - week delay in producing her fee note, which was not in itself significant.[192]In all the circumstances, I do not believe that there can be any ground for finding any aspect of Ms Wills’ conduct to be improper. Even bearing in mind Re CH (A Child) it seems to me that it would be going too far to describe her conduct as unreasonable.[193]Ms Wills has been wholly or partly responsible for a number of procedural errors, which could in principle engage CPR 44.11(1)(a). By reference to those errors it may also be appropriate to describe some of her conduct as negligent, as the term is used in Ridehalgh.[194]For the reasons I have given however, my conclusion is that such errors and omissions for which Ms Wills may have been responsible in these proceedings are not so serious as to justify the imposition of a penalty under either CPR 46.8 or CPR 44.11.

Conclusions: Mr Orphanou

[195]Mr Orphanou was instructed by Lords on 22 July 2021 to remedy the defects in the First Bill. That was one clear working day from the expiry of the 6-week period that I had, in my order of 14 June, allowed for that to be done. As I have observed, he had been given very little time. He had no access to Ms Wills’ records, which would have been needed to support most of the content of the First Bill. It would also appear, from the evidence to which I have referred and from the Second Bill itself, that he had to estimate much of Lords’ fees.[196]The Second Bill properly distinguishes between the periods when the Claimant was represented and the periods when he was acting in person, and properly identifies disbursements as such, instead of treating them as profit costs. Mr Orphanou was responsible for those corrections. It would appear from the Second Bill that he was also careful to make it clear where Lords’ claimed time had been estimated.[197]The obvious weakness in the Second Bill is the entry of counsel’s fees at item 47 in part 2, as one single (large) figure which Mr Orphanou could not break down in any meaningful way. Mr Orphanou was mistaken in thinking that I would, in those circumstances, be prepared to make some sort of broad-brush allowance. I do not believe that any Costs Judge would have done so, but it is a matter of judgment.[198]It is fair, I think, to say that Mr Orphanou did not, at the assessment hearing in March 2022, present the Claimant’s case for the recovery of counsel’s fees at all well. I do not understand how he could have completely missed my reasoned decision on disallowing item 47.[199]I also think that it would also be fair to say that Mr Orphanou has displayed a remarkable degree of naïveté in relation to the Solicitor/Client Bill. He does not seem to have understood that Lords’ reliance on a document purporting to date from January 2018, bearing a reference that did not exist until April 2021, calls out for explanation. Absent such explanation the necessary implication is that it had been manufactured after the event to overcome the third Defendant’s well-founded concerns about the indemnity principle, a concern that appears to have escaped Mr Orphanou entirely. Nor does he seem to have understood the concerns necessarily arising from Lords continuing to produce different versions of the same questionable document without some kind of explanation of why, how, and when those versions had been created.[200]It seems to me however that in so far as Mr Orphanou is open to criticism, that is as far as it goes. He was not responsible for the certification or service of the Second Bill and any accompanying vouchers. He did not himself produce the Solicitor/Client Bill. He was very clear and frank both at the detailed assessment hearing and in the correspondence that led up to it about what he had done, why he had done it and the limits of his knowledge.[201]In my view, nothing that Mr Orphanou has done in the course of these detailed assessment proceedings can properly be described either as improper or unreasonable, as the terms are defined in the authorities to which I have referred. Nor has he himself been responsible for any material breach of any rule, practice direction or order. CPR 44.11 is not engaged.[202]As for whether anything Mr Orphanou has done could be characterised as “negligent” as the term is used in Ridehalgh, so as to engage CPR 46.8, it seems to me that the most he could be accused of is poor judgement and, in some respects, weak advocacy. I appreciate that either might, in given circumstances, properly be characterised as negligent but as it would be manifestly disproportionate to consider any penalty under CPR 46.8 for anything Mr Orphanou may or may not have done in this case, I do not find it necessary to reach any conclusion on that.

Conclusions: The Claimant and Lords

[203]I have considered the position of the Claimant and Lords together for the purposes of this application. That is first because, as the Claimant and the solicitor on the record, they must between them bear responsibility for his multiple breaches of rules, practice directions and orders in these proceedings.[204]It is second because they have effectively presented a united front. By that I do not just mean that the Claimant has aligned himself expressly and entirely with Lords. I mean that he and Lords, although they are plainly in a position between them to do so, have volunteered no real information that might have assisted in the determination of this application.[205]One might, for example, have expected the Claimant and Lords, between them, to verify what someone at Lords told Mr Orphanou about the purported delivery of the Solicitor/Client Bill on 28 January 2018. One might also have expected the Claimant to explain how, having purportedly received in January 2018 a solicitor/client bill for £22,500, he advised the Senior Costs Judge less than three months later that his liabilities to Lords came to £7,800. I understand that Ms Wills was at the time attempting to warn the court that the Claimant was understating his costs liabilities, but he could hardly have missed that.[206]One might have expected Lords to produce evidence verifying the original, or at least a copy of the original, Solicitor/Client Bill; some evidence from the person said to have been responsible for the production of the Solicitor/Client Bill verifying the purported dates of production and service; some evidence explaining how its various versions, not least those bearing an anomalous 2021 reference, came to be created; and some evidence of why that anomalous reference, in the first two versions of the Solicitor/Client Bill, has the appearance of an integral part of the document, rather than a later addition.[207]Similarly, one might have hoped to receive an explanation of how, if Mr Vishwanath had, as the Solicitor/Client bill says, recorded over 75 recorded hours of time at £250 per hour, it was necessary for Mr Orphanou to estimate so much of Lords’ time in the Second Bill.[208]I have none of that. I have only, from Mr Vishwanath, a vague reference to an unspecified “clerical error”; a patently false assertion by both the Claimant and Mr Vishwanath to the effect that all orders have been complied with; and a mutual attempt to characterise this application as a conspiracy on the part of the third Defendant’s legal representatives to run up costs.[209]Even setting aside the question of the authenticity of the Solicitor/Client bill, Lords’ production of various, anomalous versions, without explanation, in the run up to the detailed assessment hearing in 2022 was manifestly unreasonable. Given the complete lack of any explanation for that, I cannot fault the third Defendant’s conclusion that amendments were made to the Solicitor/Client Bill on an ad hoc basis, in a rather transparent attempt to meet the valid concerns raised by the third Defendant from time to time.[210]That takes me to the authenticity of the Solicitor/Client bill. It has, in its various iterations, the appearance of a document manufactured after the event rather than an authentic bill delivered, as claimed, in January 2018. What was said by the Claimant to the Senior Costs Judge in April 2018 indicates that it was not delivered in January 2018. Lords have had repeated opportunities to provide the court with a clear explanation of the genesis of the Solicitor/Client Bill, to verify its delivery and to demonstrate its authenticity, but have declined to do so.[211]I am driven to the conclusion that no-one has vouched for the authenticity of the Solicitor/Client bill because it is not authentic. It was, rather, manufactured by Lords long after its purported dates of production and service, in an attempt to mislead the third Defendant and this court into concluding that Lords’ costs as claimed in the Second Bill were not claimed in breach of the indemnity principle, when in fact they were.[212]That is, in every sense, improper. It is to my mind the most important conduct issue, insofar as Lords are concerned, for the purposes of this application. It is not however the only issue.[213]It seems to me to be self-evident that whilst Lords were prepared to be on the court record for the Claimant, they were not prepared to accept any of the responsibilities attendant upon that.[214]The importance of the responsibilities of a solicitor on the court record was emphasised by Hickinbottom LJ in Gempride Ltd v Bamrah, but his clear message to the effect that those responsibilities cannot be avoided by delegation does not seem to have reached Lords, who have made repeated and ineffectual attempts throughout these detailed assessment proceedings to pass responsibility for the conduct of the detailed assessment proceedings to others, notably Ms Wills and Mr Orphanou.[215]It seems evident that Lords attached no importance to the certification of either the First Bill or the Second Bill, and that they were prepared to certify both bills without proper regard either to their accuracy or to the indemnity principle. It is also evident that Lords do not regard compliance with court orders as important. Their letter of 26 July 2021 makes that eminently clear, as does Mr Vishwanath’s nonsensical assertion that all court orders have been complied with.[216]Lord’s open refusal to remedy the defects in the First Bill within the six-week period provided for in my order of 12 June 2021 can properly be described as unreasonable. Bearing in mind Re CH (A Child), so can Lord’s chaotic production of documents in the run up to the detailed assessment hearing.[217]Strictly speaking bundles are not produced for detailed assessments (although I agree that one was useful for the assessment hearing in this case). It is usually a matter for a receiving party to support a bill with whatever papers they choose to produce. The point however is that Lords do not seem to have made any proper effort to produce a workable set of papers until the very eve of the hearing, and their production of multiple, confusing sets of papers (not forgetting the multiple and unexplained iterations of the Solicitor/Client Bill) wasted time both for the court and for the third Defendant’s representatives.[218]Taking all those matters into account, my finding is that the conduct of Lords throughout these detailed assessment proceedings, but in particular from the date of service of the Second Bill, has been improper, unreasonable, and negligent.[219]I do not understand it to be in issue that, bearing in mind the offers made by the third Defendant, the Claimant must bear the third Defendant’s costs of the detailed assessment proceedings for the period not already conceded by him. I will decide that and whether, as sought, those costs should be awarded on the indemnity basis when I know that I have heard full submissions in that respect (which, from my own record of the hearing, is not entirely clear). For now I would only make what is perhaps an obvious observation: I do not believe that I could make an order for the Claimant to pay the entire costs of the assessment proceedings on the indemnity basis when the parties have already agreed to an order that he pay the costs to 13 August 2021 on the standard basis.[220]The immediate question is whether any part of the costs otherwise recoverable by the Claimant in respect of the Second Bill should be reduced.[221]I am aware that the Claimant’s costs have already been reduced to a fraction of what was claimed, and that the outcome of this detailed assessment for him has been disastrous. I have considered whether it can be right, in the circumstances, to reduce the assessed sum further.[222]CPR 47.11(2)(a) expressly provides that a receiving party’s costs may be reduced as a result of the misconduct of their legal representatives, leaving the consequences of that reduction to be resolved between the receiving party and those representatives. The misconduct of Lords in this case is, as I have found, of the most serious kind and merits a penalty beyond the limited costs liabilities under CPR 44.11(2)(b) to which I refer below.[223]Further, whilst I do not suggest that the Claimant has any responsibility for the production of the Solicitor/Client bill, as I have observed he could have produced some pertinent evidence to help put it in context (for example as to whether he received a bill in January 2018). He could also have addressed the reasons for the multiple breaches of rules, practice directions and orders in this case, rather than simply asserting that there have been none. He has instead aligned himself with Lords and, like Lords, has done nothing to assist either himself or the court.[224]My conclusion, for those reasons, is that (bearing in mind the guidance of the Court of Appeal in Gempride Ltd v Bamrah) the application of CPR 44.11(2)(a) to reduce the Claimant’s assessed costs by 50%, as proposed by the third Defendant, is appropriate and proportionate. I will make an order to that effect.[225]I also agree with the third Defendant that the conduct on the part of Lords to which I have referred has undoubtedly increased the costs incurred by the third Defendant. Lords must, applying CPR 44.11(2)(b), bear responsibility for the costs incurred by the third Defendant’s representatives in fielding and attempting to decipher the disorganised documents served upon them; in attempting to assemble, in the midst of the chaos generated by Lords, a workable set of documents for use by the court; and in making enquiries in relation to the various iterations of the Solicitor/Client Bill.[226]Lords should also bear the costs attendant on the preparation of the third Defendant’s Part 18 enquiries, which were prompted both by the production of the Solicitor/Client Bill and by the misleading information given by Lords as to Mr Orphanou’s independent status; and the costs of the time spent in the detailed assessment hearing itself in dealing with the alleged authenticity of the Solicitor/Client Bill.[227]I will invite submissions upon the appropriate order to be made in the light of those conclusions.

Summary of Conclusions

[228]I do not believe it to be appropriate to make any order under either CPR 46.8 or CPR 44.11(2)(b) by reference to the negotiating position adopted either by the Claimant or on his behalf. For that reason I do not believe that there is any ground for ordering any of his legal representatives to pay the entire costs of the detailed assessment proceedings.[229]Although Ms Wills has been wholly or partly responsible for a number of procedural errors, I do not believe that her conduct at any point could be characterised as improper or unreasonable. Some of her acts and omissions in the course of these detailed assessment proceedings may have been negligent, in the Ridehalgh sense, but in all the circumstances I do not believe that it would be right to impose any penalty under either CPR 46.8 or CPR 44.11.[230]It seems to me that nothing that Mr Orphanou has done in the course of these detailed assessment proceedings can be described either as improper or unreasonable. Nor has he himself been responsible for any material breach of any rule, practice direction or order. CPR 44.11 is not engaged.[231]Even if some of Mr Orphanou’s conduct might be described as negligent in the Ridehalgh sense (and I do not find it necessary to make any finding in that respect) it would be disproportionate to impose any penalty under CPR 46.8 in respect of anything that Mr Orphanou has, or has not, done.[232]I have concluded that the Claimant and Lords between them have been responsible for repeated breaches of the CPR and Practice Directions.[233]In addition to that, aspects of Lords’ conduct have been improper, unreasonable and negligent, and their impropriety has been of a serious nature. For that reason I conclude that it is just and proportionate to apply CPR 44.11(2)(a), as the third Defendant has requested, so as to reduce the amount by which the Claimant’s costs have been assessed by 50%.[234]Lords must also, applying CPR 46.8 and CPR 44.11(2)(b), be responsible for the additional costs incurred by the third Defendant as a consequence of the specific conduct I have identified in my detailed conclusions. I shall be inviting submissions on the appropriate order to be made in the light of that finding.