Contents: [Ruling Sought] [Grounds for Appeal] [Supplementary Grounds] [The FACTS] [Skeleton Args]
For the original "high court" page click here.
Would you believe it is LEGAL for a solicitor to provide estimates of costs based on only £80/hr, but when caught misleading the court over costs, that solicitor is able to claim (and receive) costs at £165/hr for the SAME work?
Would you believe that a solicitor can be paid TWO AND A HALF TIMES for the SAME work which was "no order for costs" - ONCE by the client and one and a half times by the opponent? ... and that our Courts allow, endorse and legalise this?
This appears so WRONG to the man in the street - can it be allowed to stand in 21st century Britain?
YOUR Help Wanted - Friday 15th October 2010Please come to the Court of Appeal in London... because it seems to me that, without witnesses, yet another set of judges will attempt to brush serious solicitor misconduct and lies under the carpet in the mistaken belief that this is the BEST thing for the legal profession. This time we have a whole hour and three Lord Justices ** |
** Not to be squashed on 22/04/2010 - LJ Thorpe ordered a new hearing more (pdf)
Please see this letter from the Court.
Well over a decade ago Lord Woolf and The Access to Justice Inquiry clearly regarded costs as the central malaise of the existing civil justice system: "The problem of cost is the most serious problem besetting our litigation system" they went on "Costs should be certain and therefore predictable. Litigants should be in a position to receive information on which they could gauge the extent of their financial involvement in a dispute prior to launching litigation and at key stages throughout."
How is this compatible with an undisclosed DOUBLING of the RATE between estimates and bill?
No Precedent Found (Ruling Request) - in the public interest
I lead with the following contentions:
In (plain) civil law the costs rules differ from those in family law.
In (plain) civil law, the provision of costs estimates may be subject to the vagaries of the CPR and (to some extent) the whim of the Judge. In family law the provision of estimates for Ancillary Relief purposes has been mandated for at least a decade by 2.61F of the FPR 1991 amended 1999.
None of the "irregularities" (e.g. CFAs or "success fees") are permitted in family cases. They are banned by statute. The provision of proper cost information is as vital in family justice as the principles of "openness" and "disclosure".
No solicitor who charges by the hour can fulfill his or her duty to complete Form H under the FPR without first determining the hourly rate used in calculating the Indemnity Costs declared in Form H.
While the number of hours claimed might be "estimated" (and subject to later adjustment) the one thing that can never be subject to "estimation" is the hourly rate used in the calculation the solicitor MUST perform.
From the time the Form H is filed and served the hourly rate used becomes an estoppel on the rate that can be charged by the solicitor for the related work.
In the absence of a contract between solicitor and client the rate "ceiling", inherent in the Form H declaration, must be binding upon the solicitor for the inter-party costs to which the Form H relates.
Allowing a solicitor to double the hourly rate charged a YEAR and five MONTHS after a costs order has been obtained completely negates the FPR and the whole of the Form H system. Indeed, it undermines the decisions of EVERY judge from the FDA, through the FDR to the Final Hearing (and, in this case, beyond).
See also Pages [50] and [59] of the mini-bundle attached to N161
Rulings sought on these points
I ask the Court for a clear and unequivocal ruling that endorses the above.
OR
In the event that the Court does not accept these contentions, then I ask for clear and unequivocal rulings on the following: -
I ALSO seek a ruling on whether a solicitor can charge her client MORE simply because a costs order has been obtained against the other party see point 1, page 6
The Grounds For Appeal - BA02D00472
There are compelling reasons (in the public interest) why this case SHOULD have been transferred to the Court of Appeal.
Allowing a solicitor to provide costs estimates based on a rate of £80/hr and then claim £165/hr upon detailed assessment without telling the judge performing the detailed assessment the REAL reason for the increase is a very dangerous precedent to set.
It undermines the whole PURPOSE of providing costs estimates. In this case it completely undermines Section 2.61F of the Family Proceedings Rules 1991 and the Form H system.
It undermines the orders and decisions of every earlier judge that relied on those estimates including His Honour Judge Barclay who granted my unusual "Appeal Out of Time" in 2004 relying on those same estimates.
Allowing a doubling of the RATE after a costs order has been obtained allows a solicitor to create (retrospectively) "A CFA by the Back Door" - as happened in this case. This undermines The Access to Justice Act 1999 which specifically excludes any form of CFA or Success Fee in family matters.
Allowing a solicitor to double the RATE without telling the judge the MAIN "reason" for the increase between estimates and bill completely undermines Case Law such as Leigh Vs Michelin that brought about changes of the CPR in 2005.
Neither D J James (Regional Costs Judge) nor H H J Mitchell has been able to advance ANY Case Law or Statute which backs a doubling of RATES (let alone an undisclosed doubling of RATES). No such case exists and only the REVERSE would or could stand in the Court of Appeal. The public has a right to clarity.
It is clear that the profession, judges and the public are confused. A clear and unequivocal ruling is needed as outlined on page 2 of my Skeleton Arguments (pink). Transfer to the Court of Appeal is required in the public interest.
Skeleton Arguments (blue). Because D J Brookes was misled at the costs assessment in 2004 - refusing to set aside his costs order leaves:-
An order that I must pay 1.5 times Mrs Poultneys costs of "Divorce and Occupation Order" both of which were "no order for costs" D J Brookes had no authority to make ANY order about these but he was misled into doing so.
The solicitor being paid two-and-a-half times for the SAME work. Paid once (£1,823.60) in July by Mrs. Poultney and one-and-a-half times by ME in December 2004. This order can have no legal standing whatsoever and yet it stands, now endorsed by a Regional Costs Judge and a High Court Judge.
The order breaches the Indemnity Principle. The solicitor that signed the bill finally admitted in March 2008 that she should NOT have signed the bill. Skeleton Arguments (green) completely ignored by H H J Mitchell arithemitic CANNOT lie.
The orders completely undermine Henry L J in Bailey Vs IBC Vehicles FDC Law signed false declarations on bills of costs on THREE separate occasions and have been handsomely REWARDED rather than penalised. Only their costs draughtsman, has been fined (by the ALCD in 2008) for deliberately misleading the court in this case.
At paragraph 72 of his judgement (pg. ) H H J Mitchell cites Leigh Vs Michelin as his only reason for refusing to transfer to the Court of Appeal. However:
Leigh does not deal with RATES at all. It certainly does not deal with the undisclosed doubling of the rates between "estimates" and the final bill for which there seems to be NO Case Law at all.
Leigh does not deal with cases where the provision of accurate estimates at every stage has long been mandated by statute i.e. by Section 2.61F of the Family Practice Rules
Leigh does not deal with cases where the "estimates" provided are almost exclusively for work already done and where the margin for "error" can reasonably be expected to be very small indeed.
Leigh (clearly) does not answer for cases where the Judge carrying out the costs assessment and making a "Leigh" type decision is actually misled over the MAIN reason for the increases i.e. the undisclosed DOUBLING of the RATES. See unaddressed Skeleton Argument (pg. ) (dark blue paper).
Leigh (clearly) does not answer for cases where the "estimate" is ambiguous and misleading and where the Judge making a "Leigh" type decision is lied to by the costs draughtsman and takes took WRONG amount. Resulting in an Order that I must ALSO pay 150% of the costs of divorce and Occupation Order which were "no order for costs". See unaddressed Skeleton Argument (pg. ) (pale blue paper).
Leigh (clearly) does not answer for cases where the solicitor finally admits (over 3 years later) that she should NOT have signed the bill that was assessed and judged according to Leigh.
Paragraph 73 is unclear. Clearly the Court did NOT accept my view of the Indemnity Principle. Whatever reasoning he intends by this it is clear that H H J Mitchell cites ONLY Leigh when there are "compelling reasons" and a Ruling Request given in my arguments (pg. )(pink paper)
The evidence that the bill for > £16,000 breached the Indemnity Principle is plain. At paragraph 53 of his judgement (pg. ) H H J Mitchell omits a crucial sentence when he "quotes" the letter of 15/10/2003. The REAL quotation may be seen in para. 44 of the Judgement of D J James "Basically, I consider that the costs as ordered cover the period from the conclusion of the Occupation Hearing until finalisation of the Court Order in July 2003". This is clear and unequivocal proof that:
Three months AFTER the Ancillary Relief work was completed FDC Law agreed with their Client that £6,187.50 more than covered her liability to them for the AR work.
That FDC Law AGREED the RATE of £80/hr upon which the "costs as ordered" had been assessed on 29/07/2003.
The Indemnity Principle may be unpopular with "the profession" but it is still the LAW and no judge may ignore it. Nowhere in his Judgement ahs H H J Mitchell addressed my Argument (pale green paper pg. ) in which D J James reached the WRONG conclusions by adding up the time-ledger incorrectly. Arithmetic cannot lie; though mistakes can be made. H H J Mitchell has himself "missed" a crucial piece of corroborating evidence, which ALSO backed by the (eventual) admission by the solicitor under oath. This is NOT a criminal case and yet the PROOF appears to be "beyond any reasonable doubt". In ANY event, it is a basic principle of costs assessment under the CPR that ALL doubts are resolved in favour of the paying party. How CAN I have had a fair hearing before D J James or H H J Cardinal when the DOUBLING of the RATE was kept SECRET by FDC Law until 2008?
As stated in my original Grounds Neither Judge has been able to advance a single piece of Case Law OR Statute that backs a DOUBLING of the RATE which clearly undermines the FPR and the whole PUPOSE of the estimate. The only "justification" H H J Mitchell advances is in Para. 50 of his Judgement (pg. ). In legal terms I think this is referred to as "obiter dicta" it did NOT happen in THIS case and is in no way relevant or binding (
Well over a decade ago Lord Woolf and The Access to Justice Inquiry clearly regarded costs as the central malaise of the existing civil justice system:
Allowing a solicitor to more than DOUBLE the RATE charged is against ALL those reforms and 21st century law.
REWARDING a solicitor who was professionally negligent and who LIED for YEARS to hide that negligence is against all Natural Justice
PENALISING a Litigant in Person and single parent with TENS of £1,000s in extra costs for catching the solicitor in those lies and insisting on JUSTICE is to breach the Judicial Oath.
These and my original Skeleton Arguments will appear in the public domain linked from the following URL.
http://www.lcs-test.co.uk/CofA.htmElectronic publication permits hyper-links to paragraphs of approved judgements and evidence and makes the whole "bundle" accessible with only a few clicks. It is a mark of the TRUTH of these statements that a law firm is unable to prevent publication of facts that are damning.
If the Indemnity Principle is indeed "dead" in all practical senses then the public has a right to know.
If our Courts believe it is JUST to reward solicitors who cheat and to penalise single parent LIPs in order to brush this misconduct under the carpet, the public has a right to know. The solicitors who behave in this way and the judges who "legalise" this behaviour shall be named.
Most FACTS were not established until 2008 - the solicitors hid them in order to hide their own professional negligence, lies and misconduct.
During Ancillary Relief Proceedings in 2002 and 2003, FDC Law provided three costs estimates in Form H (1, 2, 3). All estimates were based on a RATE of £80/hr, though this FACT was not established until 2008.
In October 2003, three months AFTER the final hearing, FDC Law wrote to their client confirming that the £6,187.50 costs ordered (based on £80/hr) more than covered her liability to them for Ancillary Relief costs.
In October 2004 costs draughtsman, Nigel Douglas Long (FALCD), produced a "bill" claiming a RATE £155 and £165/hr for those SAME costs - NOW totaling over £16,000. Somehow Long persuaded the solicitor (Senior Partner Patricia Wayman) to sign the false "bill" he had produced.
In December 2004 District Judge Nigel Brookes was NOT told of this (more than) DOUBLING of the RATE and the entire solicitors file was (conveniently) "missing" at the hearing. Nor was D J Brookes told about the letter agreeing cost of £6000 based on £80/hr.
Please click here (pdf)
Contact Me - before 15/10/2010 - please witness
email: cofa@lcs-test.co.uk, tel: (07709) 147206
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