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Parvez v Mooney Everett Solicitors Ltd [2018] 1 Costs LO 125

For this month only, you can access the above Costs Law Reports case online for free.

Changes to the format of the Bulletin

Subscribers will have noticed that the format of the Bulletin changed last month. Instead of the mini-headnotes of new decisions being displayed, access to them is now via a click on the case in question. This will take the clicker to the mini-headnote, in addition to which, non-subscribers can have access to a “Free Case”, that is to say, to the full transcript with the more detailed headnote explaining what the judgment is about. Having done so, maybe they will be persuaded to become full subscribers… we hope so! For full subscribers, by logging in, they will be able to read any of the over fifteen hundred cases we now have online.

The cases put online or published in the printed edition of Costs Law Reports for the previous month remain listed at the foot of the bulletin, and anyone clicking on a case will be taken to the mini-headnote. Again, subscribers can then log in and gain access to the detailed transcript. We hope that these changes will meet with approval. As always, we welcome feedback, good or bad.

Retirement age for judges

This a topic which has formed the subject matter of an earlier Bulletin. In the October 2017 Bulletin, we lamented the retirement on the grounds of age (70) of Lord Neuberger of Abbotsbury as President of the Supreme Court. A passing glance at any of his recent judgments will make make it abundantly clear to anyone, save apparently the Powers-that-Be, that imposing a compulsory retirement age on a judge of such calibre is absurdly premature, but if that Bulletin contained a lament, it also expressed approval and offered congratulations at the appointment of Lord Neuberger’s successor, Baroness Hale of Richmond. Lady Brenda Hale is the first of her gender to reach the top of the judicial greasy pole but herein lies the irony. Far from passing the legal baton to his junior in years, Lady Hale was and is, in fact, older by two and a bit years than her predecessor and is permitted to remain in post until she is 75.

How is it that this state of affairs can arise, that one judge has to go on the grounds of age, to be replaced by a successor who is senior in years?

The answer lies in the date of appointment. Lady Hale became a Judge of the High Court in 1994 when legislation was in force permitting judges to sit until their 75th birthday. That all changed with the implementation of the Judicial Pensions and Retirement Act 1993 which altered the retirement date to 70, but with transitional provisions enabling judges already in post to retain the pre-existing retirement age of 75. Currently (apart from Lady Hale), the only holders of judicial to which those transitional provisions apply are Longmore and Arden LJJ, their dates of appointment both being in 1993, meaning that they can continue to sit until their 75th birthdays, in, respectively, 2019 and 2022.

Given that in December 2016 the age limit for jury service was raised to 75 (from 70), it might be thought odd that judges with years of experience gathered over careers of four or five decades in the law are not considered to be cerebral enough to continue on the Bench beyond 70 and yet, by the same token, to be deemed of sufficient mental agility aged 75 to decide the fate of a defendant accused of crimes as serious as murder! That said, it is right to recognise that mental powers do diminish with the galloping years and that if there was no retirement age, judges could go on for ever, as was the case (almost) with Lord Denning. One of the country’s great judges, Lord Denning was not subject to any statutory or other obligation to retire and soldiered on into his 83rd year as Master of the Rolls.

That was too long. The senior (by age) of your co-editors remembers saying a notional “goodbye” to Lord Denning in the summer of 1982, when sitting in the public gallery of his court during the final two weeks of term. On that occasion, it was the lot of the members of the court on either side of the great man to give him a prod when he nodded off in the middle of learned counsel’s submissions, as he frequently did after the short adjournment. Nonetheless, even after a judicial snooze, in that term, Lord Denning was still able to deliver one of the seminal decisions on the difference between interim and final bills under the Solicitors Act 1974: see Chamberlain v Boodle & King.

All this begs the question: what to do with our pensioned-off judges, deemed too old at 70 to be of service any longer?

The answer was to be found in the Times last Thursday. Give them a job in the Commercial Court of Kazakhstan where it appears no age barriers apply. On the contrary, the court has appointed as its Chief Justice none other than Lord Woolf, who retired as Lord Chief Justice of England and Wales in 2005 and who will be taking up his appointment in his 85th year, beating even Lord Denning’s record. Added to that, he will soon be joined by relative youngsters Sir Rupert Jackson and Sir Jack Beatson, who retire shortly as LJs on reaching their 70th birthdays!

As the judicial brain-drain ebbs away to Kazakhstan on the grounds of age, there is, surely, some lesson there for the Powers-That-Be to learn?

Neill and Brooke LJJ (deceased)

It was with sadness that we have learned of the deaths of two stalwarts of the Court of Appeal, Sir Brian Neill (August 2 1923–24 December 2017) and Sir Henry Brooke (19 July 1936–29 January 2018). Sir Neill was a High Court judge from 1978 until his promotion to the Court of Appeal in 1985 and for Sir Henry, his respective appointments were 1988 and 1996. They retired in 1996 and 2006 respectively, although both continued to sit as deputies in the Court of Appeal until the statutory judicial retirement age took its toll on them too.

It is well known that prior to his appointment as a judge, Sir Brian Neill was a distinguished libel lawyer who had been instructed in numerous high profile actions, including cases involving Private Eye and Christine Keeler at the height of the Profumo scandal, but he also acted for the Sunday Times in Thalidomide, when the Government attempted and subsequently failed (in the European Court), to prevent the newspaper from publishing an article aimed at forcing Distillers to increase its compensation for the victims of the drug. Sir Brian also wrote and then edited several subsequent editions of Duncan and Neill on Defamation. After retirement, he became prominent in alternative dispute resolution and was an accredited international arbitrator and mediator.

Less well known is Sir Brian’s judicial experience being brought to bear in costs – see General of Berne v Jardine Reinsurance Management Ltd [1998] 1 Costs LR 1! This case was this co-editor’s first appeal (as in from him). It concerned the indemnity principle and whether the costs recoverable from a losing opponent in litigation are capped at the figure assessed, provided they do not exceed the sum which the successful party is liable to pay their own solicitor, or whether there should be an item by item comparison so that, as Sir Brian put it, “the figures in the contentious business agreement provide both a measure and a ceiling for each recoverable item of costs”.

Opting for the latter, Sir Brian (with whom May LJ gave the leading judgment and Hirst LJ agreed) overturned the decisions below ([1997] 2 Costs LR 66, Tuckey J) with the result that, on detailed assessment, the court must carry out an item-by-item approach. It has followed from that, that since General of Berne, if interim statute bills have been delivered to a client by the solicitor acting for the receiving party, the between-the-parties bill must be divided into parts for each invoice so rendered, to ensure that there has been no breach of the indemnity principle. Not a uniformly popular decision at the time, but if it was one that was correct in law, what do the consequences matter?

Finally, another fact even less well known about Sir Brian given his modesty (no Who’s Who mention about it) is his war record, a matter we suspect that many of those who appeared in front of him had no idea about. It is fitting to conclude this Bulletin tribute with the following extract from his newspaper obituary:

"In June 1943 he joined a mobile battalion attached to the 11th Armoured Division. Landing on D Day +5 he commanded a platoon supporting a detachment of Sherman Tanks, part of the force trying to drive the Germans from Caen.
On June 28 as part of Operation Epsom, they set out to dislodge a force with vastly superior Tiger Tanks from the strategic Hill 112, Neill losing five men from his platoon of 30. Next morning they reached the summit, but Neill was wounded in a fierce barrage and the force again withdrew.
Neill woke up 24 hours later in hospital in Swindon. A shell fragment had lodged in his liver and the surgeon told him it was too dangerous to operate.
He re-joined 8RB that November; they pushed into Germany and in April 1945, reached the river Aller. A German colonel, bearing a white flag, proposed a combat free zone. There was a prison camp nearby and it was feared some might escape and spread typhus.
The camp was Belsen… He would never speak about what he saw."

An obituary of the life of Sir Henry Brooke appeared in the Times last Friday. It focused on his achievements in bringing technology to the Law Courts and as a “Lord Justice who championed computers, called on the law to embrace women and ethnic minorities, and was a passionate tweeter”. Mention was also made that “when his colleagues expressed alarm at receiving emails with a time-stamp of the early hours, he was able to convince them that it was computer malfunction”.

So far as the cost judges are concerned, that statement has a distinct ring of truth about it. The year of the Total Eclipse (1999), was the occasion that the judiciary was introduced to email. With great fanfare, residential training courses were arranged by the then Lord Chancellor’s Department to bring judges into the electronic world. Unfortunately the laptops required to fulfil the electronic dream did not arrive in the Senior Courts Costs Office until at least six months later, by which time all those valuable hours of tuition had gone to waste, such was the delay between the training and the going on active service. The laptops stayed firmly in their boxes until one Saturday afternoon, came an email from Sir Henry Brooke to the Senior Costs Judge (the then only computer savvy costs judge) with the observation (euphemism for complaint!) that no costs judge had ever sent an email. That was to change and it did!

Unfortunately, but perhaps unsurprisingly, the obituary made no mention of Sir Henry’s contribution to the law of costs. Less well known is the Brooke legacy to be found in the numerous costs judgments he gave in the “noughties” at the height of the “Costs War”, as Sir Rupert Jackson has described the many costs disputes on which the court was required to adjudicate in that decade.

Sir Henry was at the forefront: remember Claims Direct, Myatt, Callery v Gray, Hollins v Russell: they are to name but a few of the thirty-something cases reported in Costs Law Reports in which Sir Henry gave judgment. Of these, one stands out as a seminal authority when he was merely Brooke J. The case was Brush v Bower Cotton and Bower (1992) Costs LR (Core) 223.

In those days, there was no internet, no Bailii and very few costs judgments since most costs appeals from the Masters were heard in Chambers and few were reported. Guidance was sparse. Brush changed all that. Sitting in open court with the then Senior Costs Judge Peter Hurst, Sir Henry parcelled up a load of old chestnuts and dealt with all of them: could you recover the costs of writing attendance notes, attending court with counsel, communicating with counsel’s clerk and the court, charging for estimated time, etc? These were nebulous areas in which there had been no real guidance for years. The judgment has stood the test of time. Twenty-five years later it is still a key authority on these issues. Sir Henry Brooke will long be remembered on the Masters’ corridor.

The Costs Conference

Our speaker and topic line-up is almost complete and we have filled nearly half the available delegate spaces already. In addition to the “usual suspect” subjects, we shall be concentrating on the “New” bill with the help of Master Leonard and through conducting a mock electronic assessment presided over by Master James! Book up now!!

The headnotes and full texts of the cases below are available to online subscribers at Follow Costs Law Reports on Twitter to be notified of new cases as soon as they are published.

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