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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Williams v East Northamptonshire District Council [2016] EWHC 470 (Admin) (07 March 2016) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2016/470.html Cite as: [2016] EWHC 470 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		7 March 2016

P O S T J U D G M E N T D I S C U S S I O N

1. THE DEPUTY JUDGE: For the reasons set out in the judgment which I am now handing down I answer the three questions set out in the Case Stated "yes" and as such affirm the determination in those respects. Accordingly I dismiss the appellant's appeal by way of case stated.
2. I now deal with the question of costs.
3. MS IVESON: My Lord, can I just confirm that there are two costs schedules relied upon in this case by those instructing me. The first one was submitted prior to the last hearing and there has been additional costs accrued since that hearing in relation to questions that were set by the court on the last occasion. Those were emailed to the court and to Mr Williams. I have hard copies here if they would assist.
4. THE DEPUTY JUDGE: No, I have those, thank you.
5. You have got a copy, have you?
6. THE APPELLANT: Yes, they sent me another bill.
7. THE DEPUTY JUDGE: So far as the costs are concerned, I anticipate your application is to be paid those costs as set out in the schedule, is it?
8. MS IVESON: My Lord, yes, and I know I will have an opportunity to respond to Mr Williams in a moment but in general the costs claimed in this case are relatively modest. The hourly rate claimed by those instructing me is £87 an hour. My Lord, as you know at a commercial rate that would be three or four times that amount at least and in addition, my Lord, I refer you to the order of Ouseley J on 26 November 2015 in which he --
9. THE DEPUTY JUDGE: Sorry, is this about the protective costs order?
10. MS IVESON: It is, my Lord. That is at 72 and 73 of the trial bundle, and what was said by Ouseley J is that the manner in which the appellant conducts the case may add somewhat to the costs but that is because he is imposing costs on others rather than paying for a lawyer to advise him. My Lord, it is also said that this is not a particularly costly process. Part of the reason the costs are as they are is because we have had two applications prior to the appeal hearing itself, one for a protective costs order, as you know, my Lord, and one for a conversion of the case into JR. It is also right that my instructing solicitors have received email after email after email from the appellant and those have had to be dealt with. In relation to my fee, my Lord, many of the emails in this case have been dealt with by me at no cost at all to those instructing me and the rates that I have claimed are less than what I would get paid in a legal aid extradition case for instance. So really the costs claimed in this case have been very modest from all parties. My Lord, perhaps I will let Mr Williams make his submissions on costs and I can respond to those in more detail if necessary.
11. THE DEPUTY JUDGE: Mr Williams, I have obviously got your written note of 1 March, so you can take it I have read that.
12. THE APPELLANT: Since then they've sent another bill here. Basically, costs have to be proportionate. This was not a complex case, there were only two issues here. One was whether or not they could put a claim for costs on a summons. The other was actually the £75 pounds. An extremely straightforward case. The overriding thing is costs have to be reasonable and proportionate. I don't think this is an honest bill of costs. If I could ask you to look at, please, the first bill they put in. They've claimed for -- this is on the final page of their summary -- 5 hours to put this together. Grade A is the best grade of solicitor there is, in other words an expert lawyer. There is no possible way this could take 5 hours to put together. If we look at the second bill, there's been almost no work done since the final hearing and yet they're expecting you to believe, or the court to believe rather, that they spent one and a half hours putting together this summary of costs. I say that's blatantly -- if we add that all together, they say it took six and a half hours for an expert lawyer to put together this bill of costs. I just say that just is impossible, particularly for the last one. How on earth can it take one and a half hours? This is a printout, on the last page -- this is a printout from an Excel spreadsheet. It doesn't take one and a half hours to do this. The way that I'm asking you to approach this is that if someone comes to the court and puts a bill forward which is not just exaggerated but is a lie, then you should award them nothing because if you don't all you do it embolden people to come and tell you a pack of lies again. There is just no way on earth that you can take one and a half hours to put this together. As for the lower rate charge, counsel's told you that this is lower than commercial rate. This is an in-house job. LGSS Law Limited is owned by Northamptonshire and Cambridgeshire County Councils. I contacted David Williams, who's the solicitor who did this, and asked them: "Where do you get the figure of £87 from? Can you give a calculation so I can give it to the court?" And he said, "£87 is what we charge", not, "Where do we get that figure from?" As this is a wholly owned -- this body is wholly owned by the local authorities, which is Northamptonshire and Cambridgeshire, they're not supposed to make a profit out of this, they're supposed to cover their costs. But they're not trying to cover their costs here, what they're trying to do is gouge me, which is why they've said it took a solicitor on Grade A all together six and a half hours to put this together. That's practically a whole working day to put these two bills together. If you look at the actual breakdown, if you look at the first bill, the amount of hours he claims to have spent, on page 1, this is letters out to the respondent: 13.4 hours. That's nearly two full working days sending emails to the council. I mean, what on earth could the council tell him that requires thirteen and a half hours of work? 2.6 hours on the phone to the council on top of that. Attendances on opponents, he's put 3.7 hours on there. All I ever got from him was one line emails when we're doing things like exchanging documents, I acknowledge receipt. 3.7 hours again is absolutely ridiculous. Attendance on counsel, 10.7 hours sending letters and emails plus 5.7 hours on the telephone, 16.4 hours. So he's claiming for more than two full working days to be in touch with counsel. That's on top of drafting instructions. I mean, this just beggars belief, you know. I say it's a pack of lies and it's very short on detail. Can I ask you to look at the final page, please, of the first schedule.
13. THE DEPUTY JUDGE: You have no basis for saying it is a pack of lies.
14. THE APPELLANT: All right, it's either that or it's how else can you couch it politely, say it's a gross exaggeration?
15. THE DEPUTY JUDGE: You can properly submit that. You have got no material to say it is a pack of lies.
16. THE APPELLANT: Okay, well, I say it's a gross exaggeration. But if we look at the last page, it says Lucy Hodgson's witness statement: 1.9 hours. Now, this is apparently put together by an expert lawyer who should be able to do work quickly. If we actually look at their witness statement, which I've brought here, that's the heading there and this is the actual text, it's about a third of a page.
17. THE DEPUTY JUDGE: Is that in the bundle?
18. THE APPELLANT: Would you like to see my copy?
19. THE DEPUTY JUDGE: Just give me the reference.
20. THE APPELLANT: I don't know the page number, I didn't bring the whole thing with me.
21. THE DEPUTY JUDGE: I will have a quick look.
22. THE APPELLANT: There we are.
23. THE DEPUTY JUDGE: Thank you.
24. THE APPELLANT: Does that take an expert lawyer, the best in the business, Grade A, 1.9 hours?
25. THE DEPUTY JUDGE: I am sure not to write the text of it because the text of it is a page but within that will be the time taken to do the work which is identified in paragraph 2. They have to read your application, they have to check email correspondence, make enquiries with the Land Registry, make enquiries on Right Move, make enquiries with Equifax, collate the bundle and exhibit it and draw the conclusions from the enquiries.
26. THE APPELLANT: Yes, but that's been done by the council, someone working at the council.
27. THE DEPUTY JUDGE: She says that she has carried out those activities.
28. THE APPELLANT: Sorry? Yeah, she's done that.
29. THE DEPUTY JUDGE: Yes, the solicitor will have to check it, I should imagine.
30. THE APPELLANT: As regards the second bill, the respondent's submissions on remedy: £400 I think is grossly -- that's counsel's fees -- I think that's grossly excessive, and £300 here today for what's going to be a very short hearing is again grossly excessive.
31. THE DEPUTY JUDGE: Well, the submissions on remedy involved three or four Excel spreadsheets, did it not?
32. THE APPELLANT: Sorry?
33. THE DEPUTY JUDGE: There were three or four Excel spreadsheets with the different alternative valuations which were relevant to the remedy and I think four or five authorities referred to in the skeleton argument, which in the event I did not have to consider but they would have been material. In fact, there were two skeletons because there were further submissions. Let us have a look. There were two rounds. So there was one on 26 February and the one page before that. As I said, there were the calculations to be to done and I cannot now find it but there was a skeleton argument with about four or five authorities attached on how to deal with the permutations on case stated in the event that I thought that some of your costs points carried the day. So there was some work done there by Ms Iveson.
34. THE APPELLANT: Well, all I can do really is rely on my point that there's no way that it could have taken six and a half hours to put this together and I don't think it's fair that you use a Grade A solicitor to do a bill of costs like this. Why wasn't it done by the costs clerk? If you find that the figures they have actually claimed for for the time putting this together, particularly the second one, 1.5 hours, is wrong and they've deliberately inflated that, that casts doubt on the entire process. I think that it's just a case of gouging, really. If you're a Grade A expert lawyer, it shouldn't take anything like the amount of hours they've put down for, they're supposed to do things quickly. I think a lot of the work that's been done here didn't need to be done by somebody who's Grade A. It wasn't a complex case by any means, there were only two issues.
35. THE DEPUTY JUDGE: There were three, the three questions.
36. THE APPELLANT: Right, but the first question was -- questions two and three overlapped.
37. THE DEPUTY JUDGE: There were three questions which I had to answer and the third question also had three parts.
38. THE APPELLANT: Okay, well, that's it, I suppose. All I can do is just ask you to be as fair a possible. Thank you very much.
39. MS IVESON: My Lord, can I just raise one issue before I respond to those points made. Mr Williams has raised the point in relation to the first schedule of costs, that is the longer one, the main one. My solicitors spent a lot of time putting this together and what is claimed for that is 5 hours. If I can explain why that is. First of all, a case stated appeal is not an appeal that most solicitors will deal with regularly in their day-to-day practice, they are not common appeals, and the way in which my solicitor put together the costs summary is that he had to go through the recording system which records time units every 6 minutes and then for some matters, for instance where the recording system referred to an email two units, it might not say who the email was to, so he would check who that email was to, to check that that was readily apportionable to this case, for instance. So that is why 5 hours was taken to put that summary of costs together. My Lord, there is another issue. My solicitor has not claimed for the time that he has gone through and checked all his calculations this weekend and an issue has been raised about the final page of the costs claimed in the spreadsheet at number 18: hours for considering correspondence from counsel/court/others, 5.7 hours is claimed. My solicitor, on checking his calculation for that has realised that actually what he should have claimed is 4 hours and he would like to extend an apology to the court and to Mr Williams in respect of that. A reduction of 1.7 hours should be applied to that costs summary, which is £147.90, which makes the total £8,964 for that costs schedule itself.
40. THE DEPUTY JUDGE: So the figure goes down to what?
41. MS IVESON: The figure on the longer costs schedule is a reduction, essentially, my Lord, of £147.90. The grand total referred to on the previous page of £9,111.90 is reduced to £8,964. My Lord, by way of general response to Mr Williams, you have seen the way in which this litigation has been conducted by what happened at the appeal hearing on the last occasion, during which Mr Williams made a number of allegations about the council, about those instructing me, about the Magistrates' Court and he is repeating those allegations today without any evidence. By contrast, those instructing me have taken a very patient approach to this matter, they have dealt with all the questions from Mr Williams on a very regular basis and that is why costs have been inflated in this matter. Mr Williams has chosen not to take advice and therefore he has pursued avenues which were meritless but which in any event the respondent had to deal with and the respondent was here not only because it had arguments to put forward on this appeal but also to assist the court. There is no suggestion that Mr Williams does not have the means to meet these cost, that is not put forward, and in those circumstances the normal course is costs should follow the event. My Lord, I have detailed responses to all of the issues that have been raised by Mr Williams but perhaps, my Lord, if you would like to identify anything you have concerns about.
42. THE DEPUTY JUDGE: I am going to take a broader view over this rather than go through a line by line item. I have got a general impression. I particularly would like to hear from you -- well, you have said what you want to say about the 5.7 hours, the bill of costs preparation time, you have said all you want to say on that.
43. MS IVESON: My Lord, in response, regards the bill of costs, in response to the suggestion that somebody less experienced could have dealt with that, what my solicitor says about that is that he would have had to have checked any workings out done by another lawyer, so it would have been, effectively, a duplication if somebody else had made those calculations and it would have either come to the same or accrued more costs.
44. THE DEPUTY JUDGE: Is there anything else you want to say about the level of contact and involvement between the solicitors and the council themselves? 13 hours was relied on.
45. MS IVESON: My Lord, yes, that reflects the situation with a litigant such as Mr Williams sending a large number of emails. Each of those emails had to be forwarded to the council in case they had any views on those. The piecemeal fashion by which the emails came in meant that a lot of time was wasted on those issues and this is a case plainly which the council has received a great deal of criticism for from Mr Williams and it was obviously anxious to ensure that it did everything it could to win this appeal, especially given the amount of time put in by the council before this appeal even arose to ensure that all its costs did comply with the guidelines in Nicholson. So this was not a case where the council was at fault in any way. It is not, in my submission, my Lord, a simple matter in the way suggested by Mr Williams. My Lord, unless there is anything else I can assist on.
46. THE DEPUTY JUDGE: No, thank you very much.
47. THE APPELLANT: Erm --
48. THE DEPUTY JUDGE: You are not strictly entitled to another go but I will certainly be --
49. THE APPELLANT: Can I just -- a couple of points. This business about having to check through their costs software. I just don't think that stacks up. If you've got costs software, the point being made is that the lawyer has to check who the emails come from. Surely that should be recorded at the time on the costs software. There doesn't seem to be any point in having that software if it doesn't do that. That's the excuse, or the reason, put forward for charging six and a half hours at Grade A to put this together. I'm also rather disturbed that they've said actually we got one of these wrong, instead of 5.7, it's 4 hours. I'd ask you to think whether or not they've put in -- how many other mistakes are in there. Thank you very much.
50. THE DEPUTY JUDGE: This is an application for costs to be made payable by the appellant to the respondent following the unsuccessful appeal. There is no opposition to the application for costs in itself but in respect of summary assessment the appellant makes a number of challenges to the amount claimed. The amount claimed is set out in two cost schedules. The first, dated 19 February 2016, was in the sum of £9,111.90 but today has been reduced to £8,964. The second cost schedule is for costs incurred subsequent to the hearing and is in the sum of £1,822.30. Mr Williams has in written submissions made a number of points upon which he has not elaborated today but which I will deal with shortly and then today has focused on a series of specific objections to the bill. He firstly says that the public must be able to bring cases such at the present without fear or reprisal of large costs bills and orders being made again them and that he, as it were, was serving the public interest by taking on this challenge.
51. I respectfully disagree. This was a battle between the appellant and the respondent and, as Ouseley J had earlier remarked, it was one in which he had overwhelmingly a private interest with no wider public interest implications. The issues in this case, he said, and I agree, were not of any general public interest. The appellant had applied for a protective costs order and that application was unsuccessful.
52. In my judgment, if as a private litigant you take on a public body, you run the risk, if unsuccessful of having to meet the costs consequences thereof.
53. Secondly, he points to the fact that he made an offer of alternative dispute proposals which were not taken up by the respondent.
54. I have not heard any detail about that but, in my judgment, for the reasons also given by Ouseley J on page 73 of the bundle, that is not an appropriate submission in this case, it is not a basis for refusing costs.
55. Thirdly, Mr Williams says that both the Magistrates' Court and this court have found that chip and pin costs were not incurred and as a result the respondent was the author of its own misfortune.
56. I do not agree. In my view, those costs were properly included within the bill and the respondent is not at fault for having included them. That is in the bill of costs that were before the Magistrates' Court.
57. Lastly, the appellant says that this is a simple case raising three short questions. It is certainly true that there were three short questions but in this appeal the appellant has taken every conceivable point open, and indeed a number of points that were not open, to him and they have to be investigated and responded to and to the extent that the appellant cast his net wider than that, that has a cost consequence to him.
58. The point, however, that he does make is that the application for costs must be proportionate and reasonable.
59. I agree with that submission. In relation to his submissions today he has suggested that the respondent's bill was grossly excessive and contained elements of gross exaggeration, the object of which were, as he put it, trying to gouge him, effectively, and penalise him.
60. In my judgment, that is an unfair submission to make. The bill has been prepared and contains the level of costs it contains. Debate may be had over the proportionality and extent of those costs but that is the sum total of it. Various detailed submissions have been made in relation to the length of time considering documents, the length of time liaising between the solicitors and the council and between the solicitors and counsel but I am satisfied in the generality that these times were proportionate and reasonable. This case involved a lot of communication from the appellant to the respondent and each of the points raised had to be dealt with and met and I am quite sure that that will have involved a significant amount of contact beyond what would otherwise have been necessary in order to deal with the case.
61. Ms Iveson says a lot of time was wasted and I can well see that. She indeed adds that a number of the emails that dealt with the matter from the appellant were written by her at no cost to the council. It is, as Ouseley J had warned, the appellant's own conduct which has largely created the level of costs because he has been somewhat indiscriminate in the points that he has raised during the course of this appeal and has chosen not to instruct a lawyer. That, of course, is his right but every action, I am afraid, does have a consequence.
62. Taking the matter in the round, I am satisfied that a modest reduction should be made to the bill to reflect an element of costs which I would say on reflection could have been pruned. In particular, I did consider that the time spent in preparing the costs schedules themselves is too long. I hear what is said by Ms Iveson about the process that was undertaken in that regard but, in my judgment, six and a half hours preparation for these two bills of costs is excessive. But, as I say, taking the matter in the round I am prepared to make a modest reduction on the total amount claimed.
63. Adding the two bills together produces a figure of £10,786.30 and in all the circumstances of the case, in my judgment, it is just and reasonable and proportionate for a figure of £10,000 to be paid by the appellant to the respondent.
64. THE APPELLANT: How long do I have to pay?
65. THE DEPUTY JUDGE: I think the position is if I do not make an order there is a default period, which is, I believe, 21 days. Ms Iveson, are you able to help with that?
66. MS IVESON: My Lord, I am afraid I do not know the answer to that.
67. THE DEPUTY JUDGE: Are you asking for any additional time?
68. THE APPELLANT: Yeah, I'm not sure if I'll be able to pay it, to be honest. I'll have to see what I can do. I might have to get a loan. If I don't pay it will I get sent to prison or anything like that?
69. THE DEPUTY JUDGE: No, fortunately those days have passed but they levy execution and there are means of enforcing the order, getting a charging order on properties or whatever. But you can always come back to court if you find yourself in that position and make an application to deal with that but you will, of course, incur further costs in doing that. Given you may have some difficulties of that sort, I think what I am prepared to say is that that sum be paid in 28 days. But if you find that you are in difficulties, then your first port of call, I would suggest, will be to contact the respondent itself but otherwise it will be incumbent on you to issue an application for, in effect, a stay of execution, which would otherwise be applicable.
70. THE APPELLANT: Thank you.
71. THE DEPUTY JUDGE: Thank you very much for your help.