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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Byatt v Nash [2002] EWCA Civ 1321 (17 September 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1321.html Cite as: [2002] EWCA Civ 1321

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr John Crowley QC sitting as a
Deputy Judge of the Queen's Bench Division)

		The Royal Courts of Justice Strand London WC2 Tuesday, 17 September 2002

Tuesday 17 September 2002

1. LORD JUSTICE WALLER: This is a renewed application for permission to appeal. The background is this. The claimant solicitor brought an action for his fees for work done during 1991 and 1992. The writ was issued on 26 June 1998. The matter came on for trial before Mr John Crowley QC, sitting as a Deputy Judge of the Queen's Bench Division, and he gave judgment on 28 June 2002.
2. A variety of different points were taken by the defendant as answers to the claim, including points under the Limitation Act 1980 and points under the Solicitors Act 1974. The judge decided that the work had been completed prior to six years before the issue of the writ, but he found that there had been an acknowledgment (and indeed more than one acknowledgment) and that section 29(5) of the 1980 Act applied so as to render the writ issued in time. So far as the Solicitors Act point was concerned, the defendant suggested that the provisions of section 69 of the Act, which required no action to be taken unless a month had gone by from the delivery of a bill, had not been complied with. On that aspect the judge held that it was possible to look at several of the bills delivered as one bill, and that the provisions of the Act had been complied with.
3. The wish now is to challenge the judge's rulings on acknowledgment and the Solicitors Act in the Court of Appeal. Mr Edwards acknowledged at the outset of his oral submissions that the points which are being taken are not exactly meritorious. They are as technical as it is possible to be, but the question is whether there is a reasonable prospect of persuading the Court of Appeal that on one or other point the defendant should succeed.
4. Mr Edwards took us to the Solicitors Act point first. The principle of combining bills is not, I think, challenged but it is sought to be argued that no action can be brought, and thus no claim can be made, on interim bills. So far as the bills here (which are attached to the skeleton argument) are concerned, it is suggested that they do not in any one of them, or at least in relation to the final one, purport to be all one bill. It is also said that at least one of the bills which is relied on as being part of the combined bill is addressed to the trustees of the Bookham Trust and not to Mr Nash personally.
5. As it seems to me, there should not be an unnecessarily technical attitude to this section. The section is not designed to relieve a client from total liability for sums due to solicitors: it is designed as a protection to clients to ensure they have a proper opportunity to have the bills assessed and challenge the different items. There can be no doubt here that these bills were delivered and that every opportunity was available to assess and challenge individual items. No individual item has been challenged; only the technical point has been taken.
6. In my view, so far as the fact that one bill is addressed to trustees of the Bookham Trust is concerned, there is no prospect of persuading the Court of Appeal that that is a point which would disallow combination. In the circumstances of this particular case it is quite clear that Mr Nash authorised bills to be sent to the trustees of the Bookham Trust so that they should be paid out of that trust. In so far as bills were delivered at the trust's address, they were, therefore, being delivered to the trust as an agent for Mr Nash. There is thus no reason why those bills should not all be combined.
7. As regards the bills not (as it were) being combinable, because they do not purport to be one bill, it seems to me that the test which the judge applied, which was to look at the individual bills and find that they covered different periods of work in relation to one particular transaction, is a permissible approach and there is again no prospect of persuading the Court of Appeal that Mr Nash should be relieved of any obligation to pay these bills by virtue of reliance on section 69 of the Solicitors Act.
8. As regards the limitation point, the question is whether there is any prospect of persuading the Court of Appeal that the judge's reliance on three possible letters of acknowledgment should be reversed. The sequence of events appears to be that there was a meeting on 29 November 1993 at which Mr Nash and a Mr Salter were present, the notes of which clearly demonstrate that there was at least an oral acknowledgment of the liability to outstanding fees. The discussion at the meeting related to whether pictures might be put up in place of cash in order to discharge the obligation to pay those outstanding fees. What followed that meeting was, first of all, a letter from Mr Salter. Mr Salter, as it would appear from the minutes of the meeting, was there to advise on tax matters but, as it would seem the judge found, also to intercede with the trustees in relation to settlement of these fees. That seems highly likely, since he wrote a letter to the claimant on 9 December 1993 saying:

"Further to our meeting of 29 November, a letter has been drafted explaining the position as to the ability to pay the fees you are requesting. This is with the trustees for approval and will be sent to you as soon as possible."

9. Because that letter is headed "Outstanding Fees" Mr Edwards accepted before the judge and before us that it would constitute an acknowledgment, provided Mr Salter was authorised to send it.
10. One then finds a letter from the claimant to Mr Nash of 4 January 1994, again headed "Outstanding fees", referring to pressure from the Royal Bank of Scotland in relation to collection of the same and referring to the fact that it would be helpful to have information concerning the two paintings. That is followed by a letter from Mr Nash personally. This letter does not contain a heading "Outstanding fees" but it refers to the letter of 4 January and advises that:

"... I have requested that the trustees arrange to send you information and a current valuation on the two paintings. Unfortunately, the art valuer we use only recommenced work as at 3 January, and we are still awaiting his response."

11. Clearly by implication there is acceptance by that letter that there are outstanding fees. What is being dealt with is, as one would expect from the meeting which took place in November, the arrangements that should be made for the possibility that pictures could be put up in order to discharge the debt.
12. Then there is a letter of 13 January, which is written by Mr Cowan, who was a trustee of the discretionary trust. That is headed "AC Nash Esq Outstanding fees" and in the second paragraph says:

"In order to assist in this matter we have had a valuation of the two pictures by Richard Wilson prepared by an independent art consultant ... The valuation together with the supporting background notes is enclosed. As you can see the value is put at £30,000."

13. That letter is copied to Mr Nash and to Mr Salter. There is no indication that either of those persons, and in particular Mr Nash, sought to suggest that that letter of 13 January was not sent with Mr Nash's authority.
14. The judge dealt with the letters individually. He was, of course, dealing with the letters sent by Mr Salter and Mr Cowan on the concession that they were acknowledgments. He held, first of all, that Mr Salter had authority to send the letter he sent; and, secondly, that Mr Cowan had the authority to send the letter he sent. When he came to deal with Mr Nash's letter, which was not accepted as an acknowledgment, he held, thirdly, that it was an acknowledgment when read in the context of the letter of 4 January.
15. If one looks at the matter as a whole, as it seems to me there is simply no chance of persuading the Court of Appeal that there was no written acknowledgment of this debt. I for my part would have thought that the letter from Mr Nash personally is clearly an acknowledgment when read in the context: it would in any event be difficult to persuade the Court of Appeal that Mr Salter did not have the authority to write his letter; and it would be difficult to persuade the Court of Appeal that Mr Cowan did not write his letter with authority. But on any view, it seems to me, looking at this case as whole, there is simply no prospect of persuading the Court of Appeal that the appeal should be allowed.
16. This application should be dismissed.
17. LORD JUSTICE CARNWATH: I agree.
ORDER: Application refused