Equity Solicitors v Javid

Judgment

Mr Justice Holman:

On 16 September 2008, in the Birmingham County Court, HHJ Cardinal ordered that a firm of solicitors, Equity Solicitors, should pay wasted costs in the sum of £981.13. Equity Solicitors now appeal with permission granted by Smith LJ on 27 January 2009 at an oral hearing after a renewed application.

The solicitors for the respondent to this appeal (who was the petitioner in the underlying suit for divorce) have submitted a form N260 in which they state that their costs in relation to this appeal alone are £2,250. That may indeed be an entirely appropriate fee for the work done; but the bill illustrates that somewhere in this case all proportionality has been lost sight of when one side alone incurs more than double the costs in relation to the appeal than the amount of costs underlyingly at issue.

I need to describe the facts in a little detail. In February 2005 a husband petitioned for divorce. His wife, who does not speak any English but only Sylheti, and whose means are plainly minimal, believed that there was a reconciliation and that the divorce would not proceed further. However, some three years later, during 2008, she received a notice that a decree nisi of divorce would be pronounced on 23 June 2008. This appears to have been a shock to her, and she attended the court that day and informed the judge that she wished to defend and intended to take legal advice. So the judge very appropriately adjourned the date for pronouncement of the decree to 28 July 2008.

On 11 July 2008 the wife attended the office of Equity Solicitors, accompanied by a nephew of the husband. There she met a solicitor, Mr Mohammed Tofayel Sattar. Mr Sattar is a salaried partner in the firm of Equity Solicitors and can speak Sylheti. He told the wife that Equity Solicitors do not have a legal aid franchise and that it would be better if she instructed alternative solicitors who would be able to assist her under the Community Legal Funding scheme. Mr Sattar later said in his statement dated 13 August 2008, which was before HHJ Cardinal, that at this point the wife became visibly upset and tearful and pleaded with him to take on her case. As a gesture of goodwill Mr Sattar wrote a letter on behalf of the wife to the husband’s solicitors, Cottams. As I understand it, the gist of that letter, which I personally have not seen, was that the wife considered there was still a possibility of reconciliation and so the petition should, at least for the time