More than one firm of solicitors

Harris and Anor v Moat Housing Group South Ltd [2007] EWHC 3092 (QB) 20 December; NLJ 11 January p 67

The defendants had obtained a without notice anti-social behaviour injunction, a possession order and an anti-social behaviour order against the claimants, who were partners. The claimants successfully appealed the various orders and obtained three orders for costs in respect of the appeals. They had initially been represented by one firm of solicitors, but transferred instructions to a second firm when they were granted public funding. The two firms of solicitors agreed that they would submit separate bills, but omitted to inform the defendants of that fact. The second firm lodged notices of assessment of costs in respect of costs orders one and three, in which they had been concerned. The bill did not include the first firm’s costs for work done covered by the first order. The defendants then agreed and paid the costs of the second firm. After the agreement had been reached, the first solicitors lodged a notice of assessment of costs in respect of the first costs order and submitted a bill of £53,000. The court on appeal upheld the costs judge’s dismissal of the first solicitors’ request for assessment holding that the defendants were entitled to rely on the original notice served by the second solicitors. CPR rule 47.6 clearly provides that detailed assessment proceedings were commenced by the receiving party serving both a notice of commencement and the bill of costs, not a bill of costs. The bill was the receiving party’s statement of what he claimed was due to him pursuant to whatever order entitled him to costs. If the claimants were entitled to recover the cost of instructing more than one solicitor, Practice Direction 47 required them to include the costs of each solicitor separately in the bill. If they failed to include the costs of their previous solicitor, and the costs judge completed the final certificate, they could not claim a further assessment. Where there was an agreement for costs the critical question was what had been agreed. If the second solicitors had made it clear that the amount claimed was only part of the claimants’costs, and they would claim later for their first solicitors’costs, they would not be prevented from making a claim in respect of those costs. There would have been a failure to comply with PD 47 but, subject to any sanction that the court thought fit to impose, there would be no reason why the court should not assess the remaining costs in dispute. If, on the other hand, what was settled was the amount of H’s costs pursuant to a particular order, the position would be different. If they had left some costs out of the bill and there had been a settlement of the bill, they could not recover more than the amount agreed.