Originally published on Lexis Nexis.

Dispute Resolution analysis: Katrina Mather, barrister at Hardwicke Chambers, examines Sinel v Singh and discusses the documentation a judge needs to assess quantum of counsel’s fees.

Original news

Sinel v Singh [2016] EWCA Civ 387

What is the background to this decision?

This decision is the appeal from the High Court to the Court of Appeal following an application for strike out of the defence to a claim for payment of counsel’s fees where the judge at first instance summarily assessed the amount of counsel’s fees owing.

Kuldip Singh QC of Serle Court Chambers was instructed by Mr Sinel (an advocate in Jersey) in 2006 to assist one of his clients. Mr Singh was instructed on an agreed hourly rate of £500 to undertake various pieces of work. Between May and December 2006, Mr Singh carried out the work he was instructed to do and was paid.

In January 2007, Mr Sinel instructed Mr Singh to carry out further work. Mr Sinel failed to pay the sums due under the four fee notes that arose from this work. On 1 April 2013, Mr Singh issued proceedings against Mr Sinel for unpaid fees in the sum of £108,694 plus interest. Mr Sinel denied liability on the following grounds:

  • there was no contractual or other liability to pay counsel’s fees
  • limitation had expired
  • improper amounts of time had been spent on the work

Mr Singh issued an application for the defence to be struck out and alternatively summary judgment. Mr Edwards appeared on behalf of Mr Sinel at the first hearing. Mr Edwards dropped the limitation defence because there had been an acknowledgment of the debt within the preceding six-year period. He proceeded on the basis of an hourly rate of £500 and made it clear that he did not challenge that the claimant had actually done the number of hours work he claimed for. Mr Edwards instead argued that it was not reasonable for the claimant to spend the number of hours on the work that he did.

The judge at first instance held as follows:

  • there was no contract between Mr Singh and Mr Sinel
  • Mr Singh was entitled, however, to remuneration on a quantum meruit basis
  • £500 was the appropriate hourly rate
  • judgment in favour of Mr Singh for £102,307.20

The defendant appealed to the Court of Appeal on three grounds. The judge did not:

  • have before him the necessary material to assess quantum
  • carry out an assessment—he merely plucked figures out of the air and gave no reasoned justification for his decision
  • deal with the matter as a summary assessment as he was carrying out a different exercise from a summary assessment

What material does a judge need to assess quantum of counsel’s fees?

The Court of Appeal found that the judge did have the necessary material to assess quantum of counsel’s fees. The judge had the following documentation before him when making his determination:

  • four fee notes which set out the tasks done, the time taken and the cost at the agreed hourly rate
  • a schedule of work done including dates and times
  • a bundle of emails and correspondence sent by the claimant to the defendant in advance of undertaking various items of work with estimates of how long the work was likely to take
  • a comparison schedule in respect of a sample period from the fees incurred in 2006, which showed that the times estimated and time spent on work was similar, and
  • the defendant’s points of dispute setting out how long each of the tasks should have taken

The judge also heard full argument from both parties.

What explanation does a judge have to provide when determining quantum?

The court found that the judge’s reasoning was sufficient. Having concluded that it would not be in accordance with the overriding objective to order an inquiry to the quantum of the costs, he awarded £102,307.20 on the basis that £44,826 of the sum claimed was undisputed and 90% of the balance disputed was due and this equated to £57,481.20. He acknowledged this was rough justice, but, having regard to the evidence and arguments, felt this was a proportionate manner in which to deal with the assessment.

In the proceedings before the Court of Appeal, the defendant had sought to rely on 1-800 Flowers Inc v Phonenames Limited [2001] EWCA Civ 271 and sought to argue that the judges in both cases fell into the same error. In 1-800 Flowers, the judge ignored the detailed bill of costs filed by both parties and instead held that a case of that sort should cost no more than £10,000 and assessed costs in that sum. The Court of Appeal found that the judge in the Sinel v Singh case had not fallen into this error. The judge had paid close attention to the costs figures put forward by both parties and he arrived at a conclusion which lay some way between the claimant’s contentions and the defendant’s contentions.

What are the practical implications of this case?

This case does not define the documents that a judge must have in order to assess quantum of counsel’s fees. However, it does give an illustration of what documentation was sufficient in this case. It further highlights the necessity of good record keeping.

In terms of reasoning, it does not appear that the judge at first instance gave many reasons for his decision at all. However, he had regard to evidence and arguments presented by the parties and came to his judgment on the basis of the information before him. This was in contrast to the approach taken in 1-800 Flowers where the judge imposed a pre-conceived notion of the appropriate figure.

Katrina Mather accepts advisory and court instructions in property, commercial, insolvency and personal injury matters. She frequently appears in the County Court, conducting trials on all tracks as well as making applications. She has extensive experience appearing in Stage 3 quantum hearings with a strong record for securing favourable awards both in damages and costs. She is available to provide advice on quantum.