Costs and Estimates in Family cases - 1
How are the guidelines handed down by the Lords in the well known precedent of Leigh Vs Michelin applied in Family cases?
Or - "Gross incompetence by Family solicitor is highly rewarded!"
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New! How Nigel Long misled the Court in December 2004 May 2008
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Prior to Leigh v Michelin the application of "estimates" at assessment was something of a damp squib! This article on the website of Ricksons (the Firm representing in LvM) certainly seems to support that view whilst providing an excellent overview and paraphrasing of the guidelines this case provides.
In Family cases, of course, the need to control costs is even more important and the requirement to file costs estimates (Form H) at every stage has long been mandated by 2.61F of the Family Practice Rules. Form H's are almost exclusively for work already done. In para 13 (vii) of LvM one judge states "However, whereas it is entirely appropriate that estimates of costs already incurred should be accurate..." and it is hard to disagree with him.
So, how does a district judge and (later) a circuit judge react when the Form H "estimates" in a Family case compare with a bill submitted for detailed assessment as follows:
First Appointment - "estimate" £850 Vs "bill" £4,500 - "error" 530%
FDR - "estimate" £1,500 Vs "bill" £7,500 - "error" 500%
Final - "estimate" £5,000 Vs "bill" £13,400 - "error" 268%
In 26 of LvM the Lords say "If there is a substantial difference between the estimated costs and the costs claimed, that difference calls for an explanation. In the absence of a satisfactory explanation, the court may conclude that the difference itself is evidence from which it can conclude that the costs claimed are unreasonable."
According to Ricksons document... "This overreaching direction is an important one"
What was the only explanation given for the HUGE disparity between "estimates" and the "bill" (produced some 18 months later) ? - "The solicitor with conduct of this case failed to keep proper records"
Erm! Excuse me! Run that past me again... The only explanation given was that the solicitor responsible for both the estimates and the bill failed to keep proper records!
It would seem that in Family cases failing to follow the Solicitor's Practice Rules and the solicitor's duty to her Client and the Court is sufficient "explanation" for some judges.
Hang on, there's more to Leigh V Michelin than that... In 27 the Lords say "Secondly, the court may take the estimated costs into account if the other party shows that it relied on the estimate in a certain way."
Well, the route to detailed assessment in this case was not the normal one. The order came from a circuit judge because the solicitor in question had been in breach of the CPR at the Final Hearing, in breach of the Law Society Rules and the Final Form H actually stated that it included costs not connected with Ancillary Relief. Neither I in appealing this, nor the circuit judge who made the order for detailed assessment, had any reason to doubt those first two estimates. Clearly we both relied on them.
It would seem that in Family cases lodging and obtaining a belated appeal based on those same costs estimates is not "relying" on an estimate.
Finally in LvM... "Thirdly, the court may take the estimate into account in cases where it decides that it would probably have given different case management directions if a realistic estimate had been given." - If you can dismiss the first two so easily...
It really doesn't seem to matter in Family cases that the earlier judges (or indeed the other Party) were forced to base their decisions on highly misleading information.
So what of that old chestnut the Indemnity Principle?
It would be an odd contract indeed, between solicitor and Client, that says... "we will give you costs information as the case progresses because we have to under the FPR but if this is disputed two years later we reserve the right to an increase in excess of 500%" Umm, lawful?
There is more but I am out of time....
The solicitor in question was also in breach of
Direct Court orders
The FPR, the CPR, and the CPD
The Solicitor's Practice Rules
The Law Society Rules
Section 42 of the Access to Justice Act 1999
Her duty to the Court under CPR1 - (on numerous occasions)
Her "take" from this case in which the settlement was under £60,000 must now be approaching £35,000 in this Family matter. In all probability she will attempt to drive both myself and her Client into bankruptcy.
What kind of Judge makes such appalling decisions... to PROTECT the wrong-doer? Here is a BIG clue!
Clearly this was NOT an Appeal Court Judge or a High Court Judge. Clearly he was not publicly accountable. Clearly justice demands a wasted costs order against this woman. Clearly this is NOT a precedent.
Does anyone WANT to take this to the Court of Appeal? Set a precedent we can be proud of? Any takers? Ummm.
There is good news for anyone facing the situation I faced in December 2004 (estimates that were "out" by 530% see below). The "Incompetent Wayman" and her costs draughtsman could NOT have done this 9 months later.
Had the "Incompetent" Wayman produced the same faked "bill" now she would have had to produce in advance a "reason" for a difference of only 20% (let alone 530%) in time for Points of Dispute. I would not have had to find out in Court that the "reason" was simply that Wayman was guilty of gross Professional Negligence and had failed to keep any proper records... hardly a "satisfactory explanation". I would not have had to find out in Court that most of the "bill" claimed was in fact estimated by their costs draughtsman (a complete outsider called in two years later) based on his "experience of similar cases". Wayman certainly lied to her costs draughtsman over a number of issues and kept him in the dark over others. However, under the Solicitors Practice Rules it is the solicitor who remains responsible for the bill. It is Wayman who falsely signed the certificate of accuracy.
Furthermore, on 28th July 2006 it was finally admitted in court that Wayman had failed to provide her client with a Rule 15 Letter and the Court noted that she had ALSO failed to advise her hourly rate or an overall estimate of costs. Under these circumstances the MOST Wayman could charge her Client in respect of Ancillary Relief was £4086.24. Wayman's signature on a bill claiming that £16,000 did not exceed what her client owed was clearly a falsehood. Such declarations by an "Officer of the Court" are Contempt of Court. Given that Wayman was successful in this deceit the evidence suggests factual Fraud for almost £5,000. Add to this the fact that Wayman clearly knew this before the FIRST (successful) appeal then she ALSO managed to con the beleaguered LSC out of (up to) a further £5,000.
Whatever you do I suggest you avoid FDC Law like the plague.
ANY bill from this firm should be subjected to the closest scrutiny - check out the Elaine Pitman Page.
New! Nigel Douglas Long, The Boulevard, Weston-Super-Mare - AVOID at ALL costs - click here. Why would ANY competent and honest law firm want to employ such? Come to that, why would any "competent and honest" law firm NEED a witness to deliberately mislead the Court? New!
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