Marshall. - and - The Price Partnership Solicitors

Transcription

1 Neutral Citation Number: [2013] EWHC 4256 (QB) IN THE HIGH COURT OF JUSTICE QUEEN S BENCH DIVISION Case No: 1HQ/13/0265 1HQ/13/0689 Royal Courts of Justice Strand, London, WC2A 2LL BEFORE: Wednesday, 2 October 2013 HIS HONOUR JUDGE SEYMOUR (SITTING AS A JUDGE OF THE HIGH COURT) BETWEEN: Marshall Claimant - and - The Price Partnership Solicitors Defendant MR MARSHALL appeared as Litigant-in-Person MS S VENN (instructed by Messrs Reynolds Colman Bradley) appeared on behalf of the Defendant Approved Judgment Court Copyright Digital Transcript of Wordwave International, a Merrill Communications Company 101 Finsbury Pavement London EC2A 1ER Tel: Fax: Web: mlstape@merrillcorp.com (Official Shorthand Writers to the Court)

2 JUDGE SEYMOUR: 1. The application before me is an application on behalf of the defendant, a firm of solicitors called The Price Partnership, seeking the exercise by the court of its powers under Part 3.4 of the Civil Procedure Rules to strike out the combined action which has been commenced by the claimant, Mr Tony Marshall, or, alternatively, seeking some money judgment in relation to the claims made in the combined action. 2. There were originally two actions which have been combined since the commencement of the second. The first action was commenced in this court by a claim form which was issued on 7 December The second action was commenced in the Northampton County Court on 1 March The background to the relationship between the claimant, Mr Marshall, and the defendants is quite straightforward. On 12 May 2004 Mr Marshall was involved in a road traffic accident when a vehicle which he was driving was in collision with a vehicle which was being driven by Mr Ray Fishendon and which was owned by Mr Gary Neldan. In due course Mr Marshall retained the defendants to act as his solicitors in claiming damages against Mr Fishendon and Mr Neldan. 4. Subsequently, insurers acting on behalf of Mr Fishendon and Mr Neldon called Highway Insurance admitted liability on the part of both Mr Fishendon and Mr Noldan and matters proceeded to negotiation as to what damages should be paid to Mr Marshall by way of compensation for his injuries. Happily Mr Marshall was not seriously injured in the accident, but the injuries which he sustained did necessitate him being unable to work for a period. 5. Following a number of exchanges between the defendants and the insurers an offer was made in a letter dated 22 November 2006 written to the defendants by Highway Insurance. What they said in their second paragraph, having referred in the first paragraph to a Part 36 offer which had been made on behalf of Mr Marshall, is this: However in one final effort of compromise we are prepared to make a counter Part 36 offer of 18,750 gross of the existing CRU balance and gross of the interim payment of 4,000. That is to say we will a further 14,750 to your client in settlement is the offer is accepted. 6. It was common ground before me that indeed an interim payment for 4,000 had been made to Mr Marshall by Highway Insurance prior to this offer by letter of 22 November The defendants sought instructions from Mr Marshall as to whether or not to accept the offer. In a document under the heading Form of Instruction which he dated 24 November 2005 but which from the context must obviously have been signed on 24 November 2006, Mr Marshall, above his signature, said this, agreeing to a form of words which were being set out in a document

3 prepared by the defendants -- and I leave out those alternatives which were included in the form of instruction which are not relevant: I confirm I agree with the medical report. I confirm I have fully recovered in accordance with that report. I confirm I wish to accept the offer put forward by the other side of 18,750 in full and final settlement of my claim, subject to my interim payment for 4,000 and the CRU benefits received of Along the way to preparing the claim and supporting the claim of Mr Marshall for damages, his accountants, a firm called Foot & Ellis-Smith, had been invited to prepare two reports in relation to Mr Marshall s loss of earnings. The fees which Foot & Ellis-Smith rendered for the reports which they prepared came to a total of 1, One of the amounts of fee, , was actually included in a schedule of special damages which was prepared with the assistance of the defendants and signed by Mr Marshall, but the other element making up the total was not included in that schedule of special damages. 9. The original agreement with Mr Marshall was that the total fees payable to the accountants should be deducted from the amount which was to be paid in settlement by Highway Insurance. The position was explained by the defendants in a letter dated 15 December 2006 to Mr Marshall. In the letter there was a reference to a telephone conversation of that date and the letter went on: In relation to your accountant s fees we write to advise that these are claimed back as part of your damages. We have checked this for you and they were included in the offer from the other side which as you know was 18,750, less your interim of 4,000 and your benefits of As such, in order that they are paid please can you sign and return the enclosed form of authority and we will arrange to pay these for you. We have checked with Foot & Ellis-Smith and the total amount owed to them in relation to this accident 1, We enclose copy invoices for you. 10. Mr Marshall instructed that the payment be made, and the payment seems to have been made by sending a cheque under cover of a letter dated 20 December to Foot & Ellis-Smith. In a letter of the same date to Mr Marshall the defendants, again after referring to a telephone conversation earlier that day, said: We note that you agree to your accountant s costs to be paid in the total sum of 1, We confirm we have paid this and enclose letter for your records. We now have the pleasure of enclosing your final cheque in the sum of 13, We remind you that this figure is also net of your interim payment in the sum of 4,000.

4 11. Mr Marshall prepared and served Particulars of Claim in the High Court action and at paragraph 9 of those Particulars of Claim he accepted that he had indeed received a cheque for 13, from the defendants. He said: The defendant send the claimant a cheque for 13, which they say is the settlement figure of the claim that the claimants and the defendants negotiated for the claimant... Paragraph 9 continued, but I need not for present purposes read the rest of it. 12. The position appears to be that Mr Marshall instructed the defendants to pursue a claim for damages in respect of his road accident and the defendants did so. They sought and obtained his instructions to accept a Part 36 offer of a total of 18,750. They did accept that offer and they forwarded to Mr Marshall the balance of that amount taking into account the elements of his interim payment of 4,000 and the 1, which was the fees of Messrs Foot & Ellis-Smith. 13. Subsequently the defendants were paid the amount of 1, again as an element in the costs recovered upon settlement of the claim. Having recovered that amount again, what the defendants, through inadvertence, did was send Foot & Ellis-Smith another cheque for 1, Once it was recognised that the accountants had been paid twice contact was made with the accountants and they agreed to refund to Mr Marshall That they did as asked is evidenced by the endorsement on the claim form in the County Court action where Mr Marshall recorded that the defendant did pay back one of the 1, payments. So, at the end, the position was that, having agreed that the defendants should pay the accountants fees out of his damages, Mr Marshall did not actually do that because those fees were recovered as part of the costs and Mr Marshall received the total sum of 18,750 by way of the cheque which the defendants sent, the 4,000 interim payment and the refund from his accountants. 14. In those circumstances it is not obvious what claim, if any, Mr Marshall has against the defendants. It is helpful to have looked at the background which is revealed by documents which have been put before me, exhibited to witness statements of Mr Malheavy of Reynolds Colman Bradley LLP, the solicitors acting on behalf of the defendants, because unhappily it is wholly impossible to understand from the Particulars of Claim prepared and served by Mr Marshall in the High Court action what claim, if any, he wished to pursue against the defendants. Doing the best one could, it appeared that Mr Marshall was asserting that he believed that actually the settlement sum was greater than the amount of 18,750 and that the balance over the amount of 18,750 which I have mentioned and whatever the settlement figure was was paid by the defendants to Mr Marshall s mother. 15. The material put before me does not include any evidence in support of that being the correct analysis of what actually happened, but, if it were, then it would seem that any claim that Mr Marshall had lay not against the defendants but against his mother, she having had and received money which was

5 properly due to him. The Particulars of Claim in the High Court action in my judgment disclose no reasonable cause of action and it is appropriate in those circumstances for the Particulars of Claim in the High Court action to be struck out pursuant to the provisions of Part 3.4 of the Civil Procedure Rules. 16. In the County Court action one can understand what the claim is for. It is for one of the two elements of fees claimed by Mr Marshall s accountants. However, for the reasons which I have explained, it is clear from the material which has been put before the court that there is no substance in the claim. So in relation to the County Court action, as it seems to me, the appropriate remedy is to give summary judgment for the defendants. The actions now being combined, it must follow inevitably from the conclusions that I have expressed that the combined action be dismissed. 17. The defendants did seek by their application notices there were separate application notices in the High Court action and the County Court action before the two were combined the making of an extended Civil Restraint Order against Mr Marshall, but, as matters have turned out, Sarah Venn, who appears on behalf of the defendants, has accepted that that is not an appropriate remedy and that is not pursued. 18. Mr Marshall himself made an application by an application notice issued on Monday of this week, 30 September 2013, and, bearing in mind the indication which I gave of the conclusions which I have reached on the applications to strike out and for the summary judgment, he did not seek to pursue his application notice and in those circumstances it is appropriate for me to dismiss it. 19. The question then arises of the costs consequences of my conclusions. The applications before me were originally before me on 5 July of this year when, unhappily, the hearing could not proceed because there was no proper pagination of any bundle of the substantial material which has been put before me again today in the form of two paginated bundles. On that occasion I made no order as to costs and it is important to record that because I am now being invited to order Mr Marshall to pay the costs of the two actions to the successful defendants. In the circumstances it seems to me that that is the appropriate order, but subject to the order for costs of the whole actions not including the costs of the abortive hearing on 5 July. 20. It was accepted by Ms Venn that in the circumstances the appropriate way of proceeding was not by a summary assessment of any element of costs, but by a detailed assessment of the costs of the action, subject to the costs of the hearing on 5 July not being included. However, I was invited to consider making an order for a payment of account of costs, and that is a usual order when this court is ordering that there be a detailed assessment. Consequently, in principle I am going to order a payment on account. The question then arises as to the amount of costs which I should order to be paid on account. My role in relation to assessing the amount to be paid on account is to arrive at a figure which I am confident will not be found on the taking of a detailed assessment to be in excess of what is actually due.

6 21. There has been put before me for the purposes of today s hearing a statement of costs in anticipation of a summary assessment, and the total figure in the statement of costs is 13, Ms Venn very properly has drawn to my attention that that statement of costs includes the costs of the abortive hearing on 5 July, which it should not, and she has given me an indication of the appropriate adjustments to take account of there being no order in favour of the defendants for the costs of the hearing on 5 July. That indication is that her fee should be halved and the attendance of a representative of her instructing solicitors at the hearing should also be halved. 22. Taking that into account, I am satisfied that the figure that I am invited by Ms Venn to order should be paid on account of 5,000 is an appropriate figure and that is the figure which I order should be paid on account within 14 days. That will be the form of the order, but I have explained to Mr Marshall who has acted in person throughout this litigation that it would be appropriate for him to discuss with Ms Venn s instructing solicitors the mechanism for payment, bearing in mind that Mr Marshall has explained that he is unlikely to be in a position to pay 5,000 within 14 days.