The Claimant, Mr Fereidooni, was engaged in litigation against Halifax Plc whose agents had wrongfully seized some of his possessions. Counsel acting for the Claimant in those proceedings advised him that he might be better being represented by Messrs Pettman Smith, the Defendant in these proceedings. The client saw Mr Sachs of the Defendant firm and discussed matters in general terms. At that meeting it was agreed that the Defendant would represent the Claimant in respect of different proceedings against William Martin. A client care letter was sent under the heading William Martin which set out in the normal way the rates which the client would be charged. At a subsequent meeting the Defendant firm agreed to carry on the William Martin litigation on a no win no fee basis and the client was told he had been sent the client care letter merely to enable them to recover their costs against the other side should they be successful.
The Claimant’s case was that at a series of meetings attended by his loss assessor and his business partner, Mr Sachs agreed to conduct the Halifax litigation for whatever could be recovered from Halifax by way of costs and also agreed to conduct the litigation against the clients former solicitors (who now claimed andpound;31,000 costs) for a sum not exceeding andpound;500. The Defendant denied that any such arrangement had ever been made and that their terms of business were as set out in the William Martin client care letter, which was said to refer to all business done by the Defendants for the client.
On detailed assessment the Master heard evidence and the Claimant’s witnesses were cross examined. The Master, quoting a passage in Cordery on Solicitors, found that the onus was on the solicitors to establish the terms of the retainer and that in the absence of persuasive evidence he should prefer the client’s version. This he did and found the retainer to be in the terms asserted by the client.
The Defendant firm appealed saying that the Master had ignored the weight of the evidence and that it was quite clear from the correspondence that the solicitors were under the impression that they were working on a full charging basis.
Before Mr Justice Butterfield the Appellants were unable to demonstrate that the Master was wrong. In response to questions from the bench it was found that Mr Sachs either had no recollection or that the relevant documents were not in the bundle but were ‘probably back in the office’. The Respondent client appeared in person, his first language was Farsi and he had come out of Iran in 1979 when the Shah was deposed. He now ran a business as property manager for a number or Middle Eastern clients. Although clearly a shrewd and intelligent man he did not have a particularly good command of English and the Judge had no difficulty in finding that the Appellants had not begun to make out their case. The appeal was dismissed.
In summing up Butterfield J drew particular attention to the words of Denning LJ in Griffiths v Evans 1953 2 All ER 1364 at 1369:
‘On this question of retainer, I would observe that where there is a difference between a solicitor and his client on it, the courts have said for the last 100 years or more that the word of the client is to be preferred to the word of the solicitor, or, at any rate more weight is to be given to it: see Crossley v Crowther per Sir George J Turner V-C; re Paine per Warrington J. The reason is plain. It is because the client is ignorant and the solicitor is, or should be, learned. If the solicitor does not take the precaution of getting a written retainer, he has only himself to thank for being at variance with his client over it and must take the consequences.’
The Respondent sought an order for costs which the Appellants did not resist but wished to have adjourned back to the Master to investigate whether or not there had been financial loss. On the advice of the assessors the Judge put the Respondent in the witness box on oath and satisfied himself that there had been financial loss. The claim for andpound;1,100 costs was allowed at andpound;750.
Judges:
Mr Justice Butterfield sitting with Assessors
Citations:
[2001] EW Costs 6, [2001] EWHC 9007 (Costs)
Links:
Jurisdiction:
England and Wales
Costs
Updated: 08 June 2022; Ref: scu.185946
